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In re Alexus F.

Court of Appeals of Tennessee, Knoxville

November 13, 2014

IN RE ALEXUS F.

Session Date: September 30, 2014

Appeal from the Juvenile Court for Hamilton County No. 258046 Robert D. Philyaw, Judge

David Christopher Veazey, Chattanooga, Tennessee, for the appellant, Jonathan F.

Robert E. Cooper, Jr., Attorney General and Reporter; Alexander S. Rieger, Assistant Attorney General, for the appellee, State of Tennessee, Department of Children's Services.

Patricia C. Basham, Chattanooga, Tennessee, Guardian Ad Litem.

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

OPINION

KENNY, ARMSTRONG, JUDGE

I. BACKGROUND

The minor child, Alexus F., [1] was born in March of 2012. On April 23, 2012, the Tennessee Department of Children's Services (the "Department, " or "Appellee") removed the child from mother's custody.[2] The following day, the Department filed a petition for temporary custody in the Juvenile Court of Hamilton County. In its petition, the Department alleged that at the time of Alexus' birth, she and her mother tested positive for benzodiazepines due to mother's alleged use of un-prescribed medication during the pregnancy. Because of the severity of Alexus' withdrawal symptoms, she was transferred to a children's hospital, where she remained in the Neonatal Intensive Care Unit for approximately one month. Alexus was also born with microcephaly, a rare neurological condition that causes the infant's head to be significantly undersized such that it may restrict the size of the brain. In addition, Alexus was born without a fontanel ("soft spot") on her head. Alexus will require surgery in the future to separate the bones in her skull in order to create space for her brain to grow. Alexus will likely have developmental delays due to her condition at birth.

At the time of Alexus' removal from her mother's care, placement with the father, Jonathan F. ("Father, " or "Appellant"), was not a suitable alternative due to his history of repeated incarcerations. When Alexus was placed in state custody, Father was living with his mother, but had been in and out of jail for approximately one year. Mother and Father have five other children, none of whom are in their custody.

On April 24, 2012, the trial court entered a protective custody order, finding probable cause to believe that Alexus was dependent and neglected. The court placed Alexus in the temporary custody of the Department, where she has remained since the initial placement. Both parents waived their right to a preliminary hearing, and the child remained in the Department's custody.

On May 2, 2012, the Department developed the first permanency plan in this case. Neither parent participated in the creation of this initial plan. Pursuant to the plan, Father's requirements were as follows: (1) complete an alcohol and drug assessment and follow all recommendations; (2) submit to random drug screens; (3) not use, sell, or manufacture drugs or associate with those who do; (4) not show up for visitation under the influence of drugs or alcohol; (5) learn to cope with the stressors of life without the use of and dependence on illegal drugs; and (6) seek mental health assistance and take all medication as prescribed. Additionally, the plan required Father to: (1) pay child support as ordered; (2) obtain and maintain safe, stable housing; (3) sign all release of information forms; (4) resolve all legal issues; (5) abide by the rules of his probation; (6) resolve all domestic violence issues; (7) enhance his parenting skills; (8) keep in contact with the Department; (9) show proof of income; (10) adhere to his visitation schedule; and (11) comply with all service providers. To assist Father in meeting the foregoing requirements, the Department was to "monitor, administer, or make proper referral to [an alcohol and drug treatment] provider." The Department also scheduled supervised visitation for Father at the Department offices on Tuesdays at 2:00 p.m., starting on May 15, 2012. To facilitate the visitation, the Department provided Father with bus passes. This initial plan was ratified by the trial court on August 12, 2012, upon its finding that the requirements outlined in the plan were "reasonably related to remedying the reasons necessitating foster care placement."

On December 6, 2012, the trial court held an adjudicatory hearing on the Department's dependency and neglect petition. By order of January 3, 2013, the trial court found, by clear and convincing evidence, that Alexus was dependent and neglected. In its order, the court noted that Father "remains incarcerated and cannot provide a stable environment for [the] child." The court further found that Father "has not visited with [the] child since June 2012." Accordingly, the court ordered that temporary custody remain with the Department.

The trial court held a permanency hearing on April 18, 2013. By order of June 27, 2013, and based upon the Department's affidavit detailing its reasonable efforts to assist the Father, the trial court found that Alexus' continued placement in foster care was appropriate, and that she was receiving medical care for her various health issues. In addition, the trial court found that the Department had provided the following services to Father: (1) mental health assessment; (2) basic parenting instruction; (3) bus passes or other transportation; and (4) visitation. Although the Department provided these services, the court found that Father "is not in substantial compliance [with the permanency plan] in that he has not visited with said child since June 2012, and has been repeatedly incarcerated." Moreover, the court noted that Father had "not completed any tasks on the permanency plan" and had "not maintained contact with the Department. . . ."

The second permanency plan was created on August 15, 2013. In this plan, the Department noted that the "[c]hild has been in state custody for over a year and [the] parents have not visited and [have] been absent since [the child came into protective custody]." The goals developed for Father in the second plan were similar to those outlined in the initial plan. He was required to: (1) complete alcohol and drug assessment and to follow all recommendations; (2) submit to random drug tests; (3) not sell, use, or manufacture drugs or to associate with those who do; (4) not show up for visitation under the influence; (5) resolve all current legal issues; (6) not pick up additional charges, and otherwise cooperate with the requirements of his probation; (7) protect the child from hurt, harm and danger; (8) not engage in domestic violence; and (9) participate in domestic violence and parenting classes. In addition, the second plan required Father to: (1) pay child support; (2) maintain safe and stable housing; (3) enhance his parenting skills; (4) obtain a mental health assessment and take all medications as prescribed; (5) keep in contact with the Department; and (7) attend Child and Family Team meetings and all court hearings. The Department noted in the second plan that Father "lives with his mother when [he is] not incarcerated, " and "continues to pick up legal charges and is now jailed. . . [and is] awaiting trial." Furthermore, the plan noted that Father had paid no child support, "ha[d] provided [no] proof of stable income or housing, " and had "not been in contact with [the Department]." Unlike the initial plan, Father participated in the creation of the second plan and signed the plan on September 24, 2013. By order of November 21, 2013, the trial court ratified the second plan, finding that the plan requirements were "reasonably related to remedying the reasons necessitating foster care placement, " and that the "Department is making reasonable efforts toward the goal of reunification. . . ."

After Alexus had been in the Department's custody for over eighteen months, on November 5, 2013, the Department filed a petition to terminate Father's parental rights. As grounds for its petition, the Department alleged: (1) abandonment, under Tennessee Code Annotated Section 36-1-113(g)(1), by willful failure to visit, willful failure to provide support, and failure to provide a suitable home; and (2) substantial noncompliance with the permanency plan pursuant to Tennessee Code Annotated Section 36-1-113(g)(2). The Department further alleged, in its petition, that termination of Father's parental rights was in the child's best interest.

On December 20, 2013, the trial court appointed a lawyer to represent Father in this case. By separate order entered on the same date, the trial court appointed a guardian ad litem to represent the child. The Department's termination petition was heard by the trial court on February 14, 2014. By order of March 18, 2014, the trial court terminated Father's parental rights on the grounds of abandonment and failure to substantially comply with the requirements of the permanency plans. The trial court likewise found, by clear and convincing evidence, that termination of Father's parental rights was in the child's best interest.

II. ISSUES

Father appeals. He raises four issues for review as stated in his brief:

1. Whether the trial court erred in finding clear and convincing evidence for the ground of abandonment.[3]
2. Whether the trial court erred in finding clear and convincing evidence for the ground of substantial noncompliance with the statement of responsibilities of the permanency plan.
3. Whether the trial court erred in finding clear and convincing evidence that terminating the Respondent's parental rights was in the best interest[] of the child[].
4. Whether the trial court abused its discretion in admitting testimony as evidence that the Respondent had a pending charge of attempted murder.

III. ADMISSION OF EVIDENCE

Before addressing the termination of Father's parental rights, we first address Father's issue concerning the admission of evidence regarding his pending charge for attempted murder. Tennessee Rule of Evidence 404(b) provides:

(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity with the character trait. It may, however, be admissible for other purposes. The conditions which must be satisfied before allowing such evidence are:
(1) The court upon request must hold a hearing outside the jury's presence;
(2) The court must determine that a material issue exists other than conduct conforming with a character trait and must upon request state on the record the material issue, the ruling, and the reasons for admitting the evidence;
(3) The court must find proof of the other crime, wrong, or act to be clear and convincing; and
(4) The court must exclude the evidence if its probative value is outweighed by the danger of unfair prejudice.

Father contends that his arrest and pending charge for attempted first degree murder was improperly considered by the trial court. At the February 14, 2014 hearing Father was questioned, in relevant part, as follows:

Q. And you are incarcerated right now; is that correct?
A. Yes
Q. And you are facing murder charges?
[FATHER'S LAWYER]: Objection, Your Honor. He's not been convicted on these charges. That's not admissible.
[DEPARTMENT'S LAWYER]: I didn't ask him that.
THE COURT: Overruled.
Q. Why are you presently incarcerated?
A. I've been charged with attempted first degree murder, which it's out of self-defense.
THE COURT: The objection is sustained to the extent that you don't need to talk about that. It was just a question about why you were in jail.
Q. I had no intention of going into it.
THE COURT: I knew you didn't, but I wanted to stop him before he ...

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