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In re Michael A. C.

Court of Appeals of Tennessee, Knoxville

November 17, 2014

In re MICHAEL A. C., JR. [1]

Assigned on Briefs October 13, 2014

Appeal from the Juvenile Court for Cumberland County No. 2013-JV-3765 Larry Michael Warner, Judge

Jeffrey A. Vires, Crossville, Tennessee, for the appellant, Michael A. C., Sr.

Robert E. Cooper, Jr., Attorney General and Reporter, and Jason I. Coleman, Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Children's Services.

Olana Burgess, Crossville, Tennessee, Guardian ad Litem.

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

This is an appeal of the termination of the parental rights of Michael A. C., Sr., ("Father") to Michael A. C., Jr., ("the Child") (d.o.b. 9/3/1999). Father is currently serving an eight-year sentence for felony robbery -- his third conviction for robbery.

Following the death of his mother in 2008, the Child first lived with his grandmother until she passed away. He then lived with a maternal aunt who used drugs. In 2011, the Child was found to be dependent and neglected, at which time an aunt and uncle, Melissa and Jesse B., took custody of him. However, in May 2012, the uncle brought the Child to a DCS office and stated he could no longer care for him. DCS filed a petition to declare the Child dependent and neglected and for emergency temporary legal custody.

Father has not seen the Child since October or November of 2011. In 2007, Father had been ordered to make monthly child support payments in the amount of $271. The record reveals, however, that he only made one payment, despite being employed after he was released from prison in 2011. Father has numerous job skills, including concrete finishing, "any kind of flooring, " operating heavy equipment, and "just about anything, " and has acknowledged that he "can pick up construction work pretty much whenever" he needs to. He worked for Ken Berry Construction during most of 2012, an employer for whom he has worked off and on for 10 years, making $10 per hour. He also worked for two other companies in 2012.

Amy O'Neill, a DCS team leader, stated that she and Brandie Storm, the DCS case worker assigned to the Child's case, diligently attempted to locate Father when the Child came into custody. DCS finally found Father and called him on October 25, 2012, at which time Father was a fugitive of the law and refused to provide an address for correspondence. On November 6, 2013, Ms. Storm met with Father at Turney Center Prison, at which time she reviewed with Father the permanency plan, the surrender process, and the Criteria and Procedures for Termination of Parental Rights. Eight days later, DCS petitioned to terminate the parental rights of Father to the Child.

The following January, after Father had been relocated, Ms. O'Neill determined his new residence and mailed him a letter, requesting a guide of services available to him as well as contact information for his counselor in order to set up a conference call. She also encouraged Father to write letters and send pictures to the Child. Thereafter, Patsy Croinex, a DCS case manager[2] assigned to the Child's case, left messages with the warden of the correctional facility where Father was housed. In early March, she sent a letter to Father with her contact information, asking that he contact her as soon as possible. In mid-March, Ms. Croinex met face-to-face with Father. On five occasions between March 27 and April 10, Ms. Croinex called Father's social worker to ask for information about Father's prison programs, drug screens, and regarding a phone call with Father. She also called the Unit Manager on April 11. On six occasions between April 21 and the end of May, Ms. Croinex called the facility to speak to Father but could only leave messages with the social worker. She also sent Father a copy of the updated permanency plan and a book of stamps for him to use to write letters to the Child. Ms. Croinex was finally able to speak to Father on June 3. Upon requesting weekly phone calls with Father, the warden denied the request, stating that Father would have to use the money he earned in prison to call her.

Trial on the termination of parental rights took place on June 30, 2014. Ms. O'Neill opined that the Child has a strong bond with the pre-adoptive foster parents. The Child is involved with the Boy Scouts through his foster father and wants to become an Eagle Scout. The foster parents have encouraged him to participate in sports, with a successful outcome.[3]Ms. O'Neill related that the Child has "adamantly refused to go and visit" Father, and he refuses to read the letters Father sends him. In fact, the Child has instructed Ms. Croinex, to "[t]ake them and burn them. I don't want to see them." She testified that DCS does not force a teenager to have contact with a parent at a prison if the child is adamant about not wanting contact.

Ms. Croinex related to the court the difficulty she had in getting in contact with Father while he has been incarcerated. She testified that Father has yet to use the money he earns to make phone contact with her, as required by the warden.

Father testified that he had recently been granted parole and, upon his release in March-June 2015, will reside in a halfway house for at least six months. He stated that in spite of his tenth grade education, he has "numerous job skills." According to Father, he is a concrete finisher, "can do any kind of flooring[, ]" can "[o]perate heavy equipment[, ]" and "[d]rive anything that has got wheels on it." As to visitation and support of the Child, Father related the following at trial:

Q So you were given supervised visitation?
A Yes, sir.
Q Did you take advantage of that?
A Yes, sir. I walked twenty miles from where I was living at. I had to go
by what [the uncle] said. And he wanted me to come to church every other Sunday for two hours. . . . And [the uncle] stated that he went to church in Knoxville off of Central Avenue. So that was about twenty miles from where I was staying. So I would get up on Sunday morning and I would walk all the way to church so I could see [the Child] for two hours . . . . After service one time he took us to the park and let me throw the football with [the Child] for about thirty minutes . . . .
A After I had been seeing them[4] for about three months, it started getting October or November, and it was starting to get cold outside. And [the uncle] asked me would I get [the Child and his sister] a coat, that they had a jacket but they needed a coat. . . . And I told him, yeah, but I would have to buy one one week, and then the next week I would buy the other one. And that wasn't good enough for him. He went through the roof and told me not to never call them back. That's when I stopped actually being able to see [the Child] -- October or November, something like that.

Father noted that he has been unable to contact the Child because he does not have an address or telephone number for his son.

On July 1, 2014, the trial court entered a Final Decree of Guardianship. The court found "clear and convincing evidence" that grounds existed to terminate Father's parental rights to the Child on the grounds of abandonment by an incarcerated parent by willfully failing to visit, willfully failing to support, and conduct exhibiting wanton disregard for the Child's welfare. Furthermore, the court concluded that terminating Father's parental rights was in the best interest of the Child. Inter alia, the following findings were made by the trial court:

[The Child] was placed in the custody of [DCS] due to dependency and neglect on May 7, 2012.
[The Child] has remained continuously in foster care since 5-7-12.
The Respondent, [Father] has been incarcerated during the four consecutive months prior to the filing of this petition. [Father] has been incarcerated from 12-31-12 to present. [Father] ...

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