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In re Ayden J. C.

Court of Appeals of Tennessee, Knoxville

September 15, 2014

In re AYDEN J. C.[1]

Session June 17, 2014

Appeal from the Juvenile Court for Union County No. 8397 Hon. Darryl Edmondson, Judge

Andrew J. Crawford, Knoxville, Tennessee, for the appellant, Lillian A. C.

Clarence E. Pridemore, Jr., Knoxville, Tennessee, for the appellant, Joshua C.

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

Kevin B. Fox, Knoxville, Tennessee, guardian ad litem for the minor, Ayden J. C.

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

Ayden J. C. ("the Child") was born to Lillian A. C. ("Mother") and Joshua C. ("Father") in June 2010. Mother was sixteen years old at the time of the Child's birth, while Father was unavailable to parent the Child due to his incarceration at various times throughout the Child's life. The Child was born with gastroschisis, a condition in which his stomach and intestines were formed outside of his body. As part of his reparative treatment, his organs were wrapped in a sac and gently pushed back into his body over the course of several weeks. Once his organs were properly positioned, he developed pneumatosis, an air sac in his abdomen that was potentially fatal.

The Child was finally discharged from the hospital two months after his birth. Shortly thereafter, he returned to the hospital after having fallen out of his grandmother's bed. He suffered from a right parietal skull fracture as a result of the fall. Approximately five months later, his grandmother dropped him while sleeping with him in her arms at the hospital. The next day, a nurse observed Mother sleeping with the Child in her arms. The nurse advised Mother that the Child needed to sleep alone in his crib for his safety. Hours later, the nurse returned to find Mother sleeping with the Child in her arms again. When Mother continued to sleep with the Child, despite being advised against such behavior, a meeting was arranged wherein the Child's doctor again advised Mother of the potential harm given the Child's fragile state. Despite the meeting, another nurse found Mother sleeping with the Child the next day. This time, the nurse had to unwrap the Child's IV cord from around his neck. Mother remained adamant that her behavior was not harmful and stated her intention to continue sleeping with the Child once he was discharged from the hospital.

Following the Child's discharge from the hospital, Mother failed to return the Child to the hospital for his scheduled appointments and also blatantly disregarded important medical instructions concerning his care, namely she allowed him to drink water after being advised that the ingestion of water could cause his death. In March 2011, the Child was removed by the Tennessee Department of Children's Services ("DCS") as a result of Mother's refusal to comply with medical advice and Father's inability to care for the Child due to his incarceration. Three months later, the Child was subsequently adjudicated as dependent and neglected due to Father's incarceration and Mother's medical neglect and a failed drug screen. Mother and Father (collectively "Parents") signed the criteria and procedures for termination of parental rights.

DCS developed a permanency plan on April 19, 2011, and another on October 26, 2011. These plans were ratified by the trial court. Pursuant to the plans, Mother was required to complete a mental health assessment and follow all recommendations, use medication only as prescribed, cooperate with random drug screening, and receive necessary medical care. Pursuant to the plans, Father was required to complete his jail sentence, comply with the requirements of his probation, abide by the law, remain drug free, complete an alcohol and drug assessment and follow all recommendations, cooperate with random drug screening, secure housing and employment when he was released from jail, and remit child support in the amount of $100 per month.

In March 2012, the Child was returned to Parents for a 90-day trial home placement as a result of their compliance with the permanency plans. Three months later, the Child was returned to DCS custody when Parents failed their respective drug screens and it was discovered that the Child had missed several important medical appointments while in their care. Father also violated his probation and incurred new criminal charges on September 14, 2012, when a police officer stopped Parents and found a syringe containing cocaine and methamphetamine under the passenger seat of the car. Father admitted ownership of the syringe and was taken into custody.

To address the return of the Child to DCS custody, DCS developed a new permanency plan on November 20, 2012. This plan was also ratified by the trial court. The plan required Mother to remit child support, [2] use medication only as prescribed, complete an alcohol and drug assessment and follow all recommendations, cooperate with random drug screening, and follow the recommendations of her previously-completed mental health assessment. The plan required Father to remit child support, provide a safe and stable home environment, refrain from the abuse of drugs or alcohol, cease illegal activities, and complete an alcohol and drug assessment while in jail, if possible.

DCS filed a petition to terminate each parent's parental rights to the Child on February 8, 2013. DCS alleged that Parents had abandoned the Child by failing to remit child support and by failing to provide a suitable home, that they had failed to substantially comply with the permanency plans, and that the conditions which led to removal persisted. A hearing was held at which several witnesses testified.

Beth Miracle, a foster team leader with DCS, testified that she first worked with the Child in 2010, when he was referred for medical neglect. She related that the 2010 case was eventually resolved but that she opened a new case in February 2011, when he was referred for medical neglect and lack of supervision. She recalled that Mother failed her drug screen on June 22, 2011, the day of the adjudicatory hearing, and that the Child was adjudicated as dependent and neglected and placed in foster care. She conceded that Mother claimed to have a valid prescription but asserted that Mother failed to produce the prescription upon request. She acknowledged that she had not tested Mother prior to the adjudicatory hearing and that she did not have reason to believe that Mother was abusing drugs prior to her receipt of the failed drug screen.

Terri Devaney, a case manager with DCS, testified that she was assigned to the Child's case from March 2011 until November 2012. Relative to Mother, she testified that Mother had only remitted a total of $54 in child support, despite a short period of employment at Burger King and then at Wal-Mart in the four months prior to the filing of the termination petition. She acknowledged that Mother injured her hip in January 2013 and needed the assistance of a walker for mobility. She asserted that Mother either missed her appointment or refused to provide a urine sample for several of her scheduled drug screens. She acknowledged that Mother completed an alcohol and drug assessment in July 2012 but stated that the facility was unable to provide a recommendation because Mother could not provide a urine sample. She conceded that Mother completed a second assessment as required but asserted that Mother refused the treatment recommended by the facility. She claimed that Mother simply denied the need for treatment and repeatedly requested a third assessment. She related that she referred Mother to Youth Villages after Mother completed her mental health assessment. She conceded that Mother was "extremely compliant" with their services and was progressing until the program ended in September 2012. She acknowledged that Mother also successfully addressed her own medical needs as required by the first permanency plan.

Ms. Devaney acknowledged that Mother was in DCS custody when the Child was removed. She conceded that she did not appoint a guardian ad litem for Mother even though she believed that Mother's custodian was not providing adequate supervision. She testified that Mother never missed a visitation with the Child and that the Child enjoyed a bond with Mother and would undoubtedly miss Mother if her parental rights were terminated. She explained that the Child also enjoyed a strong bond with his foster family and that he had finally readjusted to his surroundings following his short trial home placement with Mother. She related that despite the trial home placement, the Child had resided with the foster parents since March 2011. She conceded that Mother had physical housing for the Child but claimed that DCS was primarily concerned about her substance abuse issues and Father's criminal activity.

Relative to Father, Ms. Devaney testified that when Father was not incarcerated, he regularly visited the Child. Ms. Devaney testified that Father was incarcerated from September 2012 until May 2013, well after the termination petition was filed. She related that in the four months preceding the filing of the termination petition, Father remitted approximately $92 in child support. She acknowledged that Father's child support was paid pursuant to a garnishment order and that approximately $23 was garnished from each paycheck he received. She had no knowledge concerning the rate of pay Father received but opined that Father was clearly able to work. She acknowledged that Father completed his alcohol and drug assessment and that he was not required to seek further treatment and that he had not failed a drug screen since June 2012. However, Father refused to take a drug test in August 2012.

Relative to DCS's efforts in assisting Parents, Ms. Devaney claimed that she had trouble communicating with Parents and that they often missed the Child's medical appointments. She explained that she assisted Mother in setting up medical appointments for the Child on a regular basis and that she even made appointments for Mother. She conceded that Mother was not informed of emergency appointments or appointments scheduled by the foster mother. She acknowledged that the trial court admonished DCS for failing to assist Mother in scheduling a second alcohol and drug assessment and refused to find that DCS had expended reasonable efforts at that time. She explained that she requested funds for Mother to complete a second assessment and that she provided Mother with pertinent information to follow through with the assessment. She claimed that Mother erroneously reported that the facility would not accept her insurance even though she personally confirmed that Mother's insurance was acceptable. She stated that her additional request for funds was denied because Mother had insurance. She recalled that DCS hosted multiple child and family team meetings, that DCS made several referrals for the required alcohol and drug assessments, assisted Parents during the trial home visit, and at times, provided in-home services.

Winter Ford, a family services worker with DCS, testified that she was first assigned to the case in April 2013, after the termination petition had been filed. She acknowledged that Mother had injured herself at some point but asserted that Mother appeared fine when she observed a visitation several weeks later. She assisted Mother in scheduling a third alcohol and drug assessment because Mother disagreed with the recommendations from the second assessment. She recalled that following the third assessment, the facility recommended that Mother complete alcohol and drug treatment. Despite the facility's recommendation, Mother never completed treatment and was adamant that she did not have a drug problem. She acknowledged that she never provided Mother with a specific referral for treatment. She stated that Mother failed to attend a scheduled drug screening in July 2013 and that Mother failed a drug screen in August 2013 and was unable to provide a current prescription. She attempted to visit Mother's residence, but Mother cancelled the visit and had not rescheduled. She acknowledged that she was in the process of increasing Mother's visitation time with the Child and that Mother's visits were therapeutic in nature, meaning that DCS was hopeful that Mother could regain custody. She related that the Child's health had improved and that the Child no longer needed intensive medical treatment.

Ms. Winter acknowledged that she maintained little contact with Father because Father was incarcerated when she was assigned to the case. She related that Father was released in May 2013 and that she last spoke with him in June or July 2013, when Father was living in a halfway home. She believed that Father had moved out of the halfway home, but she had not visited the new residence. She admitted that she did not assist Father with finding suitable housing and that she had not even scheduled a recent drug screen or attended Father's visitation with the Child.

Kristy Troutman, a clinical supervisor for Health Connect America ("Health Connect"), a for-profit agency that provides alcohol, drug, and mental health treatment, testified that she received two referrals from DCS regarding Mother. She related that she performed an alcohol and drug assessment on Mother in December 2012. She claimed that Mother passed her drug screen but was "very closed and guarded in the assessment." She recommended treatment because Mother had previously failed drug screens and because Mother admitted past drug use. She completed the second alcohol and drug assessment in May 2013. She recalled that Mother was late, appeared "sluggish" and "drowsy, " and "nodded off a couple of times while filling out the paperwork." She stated that Mother was unable to complete a portion of the testing because of her tardiness. She explained that she completed the clinical interview and a drug screen. She stated that Mother failed the drug screen but had a prescription for two of the three drugs that appeared in the results. As a result of the interview and testing, she recommended that Mother receive alcohol and drug treatment.

Leanne Goldstein, the clinical manager at Foothills Care, Inc. ("Foothills"), which provides therapeutic visitation, counseling, and other services for families, testified that she received a referral to provide therapeutic visitation and parenting services for Mother and the Child in May 2013. She recalled that Mother was often late for visitation and "spent a lot of time outside smoking on the porch by herself or with her mother." She stated that Mother often blamed others for her problems and contradicted herself when providing excuses for her behavior. She related that Mother failed a drug screen in June 2013 and was unable to provide a urine sample for another drug screen in July 2013. She also attempted to provide parenting education for Mother, who was either late, left early, or failed to appear for the scheduled sessions. She conceded that Mother participated in one full parenting education session during her last visit. She acknowledged that Mother's inability to participate was partially caused by her mother's interference and others that were present in the home. She opined that based upon her interactions with Mother, she did not believe that Mother was capable of parenting the Child in the near future. She explained that Mother was successful in exhibiting proper parenting skills only when she was fully attentive to the Child's needs and not distracted by others. She acknowledged that she never worked with Father.

Joseph N. ("Foster Father") testified that he was the Child's great-uncle and had served as his foster father for approximately two and a half years. He related that he and his wife loved the Child and enjoyed a bond with the Child as a result of their extended time parenting the Child. He stated that they had the financial resources to provide for the Child's needs and that their home was suitable for the Child. He claimed that he and his wife intended to adopt the Child.

Mother, who was 19 years old at the time of the hearing, testified that she became pregnant with the Child when she was 15. She claimed that at times, DCS failed to inform her of the Child's medical appointments and that the Child was not with her when he missed appointments during his trial home placement. She related that she had signed every medical release that was necessary for DCS to possess. She believed that DCS did not give her a fair opportunity to regain custody of the Child and that Ms. Troutman was "hateful" and "standoffish" toward her during her assessment. She asserted that she was willing to take another alcohol and drug assessment from another facility and claimed that she would comply with that facility's results. She asserted that she could provide a suitable home for the Child, despite DCS's failure to assist her in regaining custody of the Child. She expressed love for the Child and claimed to enjoy a very strong bond with the Child. She asserted that she was willing to do anything to regain custody of him.

Relative to her employment, Mother acknowledged that she had previously worked at Burger King for approximately one month and that she later worked at Wal-Mart for approximately six weeks, beginning in October 2012. She claimed that she was unable to work after she injured her hip in January 2013. She acknowledged that she was present when Father was arrested for possession of drugs and drug paraphernalia in September 2012 and that she refused to submit to a drug screen three days after Father's arrest. She explained that she intended to schedule a drug screen with her physician but that she later learned that her physician would not provide a drug screen. Despite her positive drug screens, she denied having a drug problem. She claimed that DCS denied her request for a new drug screen on at least one occasion when she believed the results were erroneous. She explained that she was required to take a number of valid prescriptions for her numerous health issues. She identified her medical records, which included various prescriptions, dated January 2013 through April 2013.

Following the presentation of the above evidence, the trial court terminated each parent's parental rights on the statutory grounds of abandonment for failure to support, substantial noncompliance with the permanency plans, and the persistence of conditions which led to removal. The court also found that Mother had abandoned the Child by failing to provide a suitable home. The court further held that termination of each parent's parental rights was in the best interest of the Child. This timely appeal followed.

II. ISSUES

We consolidate and restate the issues raised on appeal by ...


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