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In re Christopher J. B.

Court of Appeals of Tennessee, Knoxville

October 9, 2014

In re CHRISTOPHER J. B., Jr., et. al. [1]

Assigned on Briefs August 4, 2014

Appeal from the Juvenile Court for Cumberland County No. 2013JV3390 Hon. Larry Michael Warner, Judge

Jeffrey Vires, Crossville, Tennessee, for the appellant, Marcia P.

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

Ieshia M. Dupes, Jamestown, Tennessee, guardian ad litem for the minor children, Christopher J. B., Jr., David J. B., and Eva J. B.

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

Eva G. B. ("Eva"), David J. B. ("David"), Christopher J. B., Jr. ("Christopher") (collectively "the Children") were born to Marcia P. ("Mother") in October 1996, June 1998, and April 1999, respectively. Christopher B. ("Father") was identified as the father on each of the birth certificates. It was later determined that Franklin H. ("Biological Father") was actually the father of Eva and David.

At some point in 2007, the Children lived together with grandparents until David was sent to live with an aunt. The Children were later placed into the custody of the Tennessee Department of Children's Services ("DCS") after they were each found to be dependent and neglected. Eva was placed in custody in May 2011, David was placed in custody in March 2012, and Christopher was placed in custody in September 2012. The Children have remained in foster care since their initial placement into DCS custody.

DCS developed four permanency plans for Mother. These plans, dated June 23, 2011, January 18, 2012, April 16, 2012, and October 6, 2012, were ratified by the trial court. Pursuant to the plans, Mother was required, in pertinent part, to remit child support, attend visitation and provide food, drinks, and activities for the Children during visitation, complete an alcohol and drug assessment and follow all recommendations, complete a psychological examination and follow all recommendations, resolve legal issues, and refrain from incurring additional charges. On May 2, 2013, DCS filed a petition to terminate the parental rights of Mother, Father, and Biological Father to the Children.[2] Relative to Mother, DCS alleged termination on the statutory grounds of abandonment for failure to visit and provide support and failure to comply with the requirements contained in the permanency plans. DCS also alleged that termination of Mother's parental rights was in the best interest of the Children.

A hearing was held at which several witnesses testified. Brandie Storm, a DCS employee, testified that she served as the case manager for each of the three children for approximately two and a half years. She recalled that Eva and Christopher had been in the custody of John and Carolyn B. (collectively "Grandparents") from 2007 until their removal, when Grandparents reported that they could no longer handle their behaviors in the home. She related that David also resided with Grandparents for some time until he left to live with Rita W. ("Aunt"). He resided with Aunt until March 2012, when Aunt reported that she could no longer handle his behavior. She recalled that Eva was eventually placed with a relative, Jennifer P., while David and Christopher were placed in the same foster home.

Ms. Storm attempted to facilitate visitation, but her attempts were frustrated because Mother was incarcerated for substantial periods of time. When Mother was not incarcerated, Ms. Storm scheduled visitation between Mother and Eva in May 2012 a few times. The Children last visited with Mother in March 2013, when Mother was hospitalized. Ms. Storm asserted that the Children intended to return to the hospital for a second visit, but Mother had been discharged and could not be located. Other than the May 2012 visits with Eva and the March 2013 visit with all three children, Mother never visited the Children. Ms. Storm claimed that Mother had also not maintained regular contact with the Children from 2007 until their respective removal dates. She related that it was "really difficult" to contact Mother, who never maintained a consistent telephone number or location. She asserted that Mother never visited the DCS office to inquire about the Children even though Mother made frequent visits to a nearby office to retrieve food stamps. Ms. Storm provided Mother with her contact information and her supervisor's contact information, but Mother failed to regularly contact her. She acknowledged that Mother was incarcerated at varying times but asserted that Mother was not incarcerated from May 2012 until September 2013.

Relative to child support, Ms. Storm stated that Mother never remitted child support or provided food, clothing, toiletries, or any essential items for the Children while they were in DCS custody. Mother did not even provide any of these items the few times she exercised visitation. Ms. Storm recalled informing Mother of the obligation to provide child support and discussing the requirements contained in the permanency plans. She acknowledged that in the four months preceding the filing of the termination petition, Mother was either homeless or residing in a rehabilitation facility in Nashville. Ms. Storm claimed that she was unaware of Mother's whereabouts at the time because Mother failed to maintain contact with DCS. She attempted to contact Mother through relatives, but the relatives generally did not know Mother's whereabouts either. She also claimed that at one time, Mother said she did not want to speak with her anymore. She stated that if Mother had maintained contact, she could have assisted her in obtaining housing and employment and in facilitating visitation with the Children. In support of her assertions, Ms. Storm identified her affidavit of reasonable efforts that she provided to Mother.

Ms. Storm recalled developing four permanency plans for Mother but acknowledged that Mother was incarcerated when some of the plans were developed. She related that even when Mother was incarcerated, she discussed each plan with her and the requirements contained in each plan. She also advised Mother on at least two occasions regarding the criteria and procedures for termination of her parental rights. Ms. Storm arranged an alcohol and drug assessment, which Mother completed. Mother did not receive any recommendations for treatment from the assessment, but Mother was required to complete a similar program as a result of her conditions of parole. Mother did not complete the program as required. Ms. Storm claimed that Mother only complied with one drug screening, that Mother never provided any information to establish completion of the psychological assessment, and that Mother had also not resolved her legal issues.

Patsy Croinex testified that she worked with Foothills Care, which provides services for children in foster care. She served as the Children's case manager. She related that the Children were doing really well. She stated that Eva was very smart, was doing well in school, and had made a few friends. She stated that David was doing well in school, was very active in extracurricular activities, and planned to attend Tennessee Tech upon graduation. She stated that Christopher had "come a long way in school" and was doing well and enjoying his recent placement. She claimed that each of the children, especially Eva and David, had expressed a desire for Mother's rights to be terminated.

Mother testified that she was homeless from May 2012 until October 2012, when she was sent to a halfway house in Nashville, Tennessee. She left the halfway house in December 2012 and returned to Crossville, where she lived in a tent until she was admitted to the hospital in February 2013. Shortly thereafter, she returned to Nashville. She stated that at first, she lived in a halfway house before she was incarcerated for approximately 30 days. Upon her release, she attended a rehabilitation center in April 2013 and remained there until she was incarcerated in July 2013. She stated that she had been incarcerated since that time. She stated that while she was incarcerated, she had completed a mental health evaluation and was currently attending another rehabilitation program.

Relative to the Children, Mother acknowledged that she had not maintained regular visitation with the Children since 2007. She explained that she was told that the Children did not want to visit her. She also acknowledged that she had not regularly provided for the Children since 2007 but explained that she was either homeless or incarcerated. She stated that she wrote letters to Eva while she was incarcerated in 2011. She explained that she was unable to call the Children or remit child support because she did not have any money while she was incarcerated. She recalled that she requested visitation in 2011 but that she was told that the Children did not want to visit her. She stated that upon her release, she visited with Eva a few times. She was later told that Eva did not want to visit her anymore. She claimed that she had difficulty contacting Ms. Storm but that Ms. Storm always had a valid contact number for her through her mother. She related that when she was not incarcerated, she spoke with her mother every day. She stated that she left voicemail messages and text messages for Ms. Storm, who never contacted her. She did not have the Children's address or telephone number and could not contact them without assistance from DCS. She acknowledged that she was employed for approximately three weeks in 2013 but claimed that she did not have enough money to support herself and remit child support.

Mother testified that she sought assistance from DCS in obtaining housing but that DCS never provided assistance. She claimed that upon her release, she planned to obtain employment and live in a homeless shelter until she was able to find housing. She stated that she had several employment options and believed that she could easily find suitable employment. She acknowledged that she had not obtained employment for several years but explained that she was disabled and physically unable to work. She related that she intended to ignore her disability and find suitable employment upon her release. She asserted that Christopher had expressed a desire to live with her upon her release.

Following the presentation of the above evidence, the trial court terminated Mother's parental rights on the statutory ground of abandonment for failure to provide support and failure to visit. The court also found that despite reasonable efforts by DCS to assist Mother, she failed to comply with the requirements contained in the permanency plans. The court likewise found that termination of Mother's parental rights was in the best interest of the Children. This timely appeal followed.

II. ISSUES

We restate the issues raised on appeal as follows:

A. Whether clear and convincing evidence supports the court's termination of Mother's parental rights based upon the statutory ground of abandonment pursuant to Tennessee ...

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