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In re Serenity S.

Court of Appeals of Tennessee, Jackson

November 24, 2014

IN RE SERENITY S.

Assigned on Briefs October 24, 2014

Appeal from the Juvenile Court for Madison County No. 5348178 Christy R. Little, Judge

Joshua Brian Dougan, Jackson, Tennessee, for the appellant, T.S.

Kortney D. Simmons, Jackson, Tennessee, Guardian Ad Litem.

Kenny Armstrong, J., delivered the opinion of the Court, in which J. Steven Stafford, P.J., W.S., and Arnold B. Goldin, J., joined.

OPINION

KENNY ARMSTRONG, JUDGE

I. BACKGROUND

The minor child at issue in this case, S.G.S., [1] was born in May 2012 to T.S. ("Mother, " or "Appellant"). S.G.S. was born with Triple X Syndrome.[2] Shortly after the child's birth, the Mother's doctor ordered a urine drug screen because of Mother's erratic behavior and her threat to leave the hospital against medical advice. T.S.'s urine tested positive for methamphetamine, and on May 11, 2012, referral was made to the Tennessee Department of Children's Services ("DCS").[3] On that day, DCS "call worker, " Zanetta Williamson, spoke with Mother at the hospital. Mother informed Ms. Williamson that "her membrane had ruptured on May 8, 2012; however, she was not admitted to the hospital until May 9, 2012 stating that she had too much to do at home." DCS investigator, Dorthea Brice, [4] was subsequently assigned to S.G.S.'s case. Ms. Brice testified that Mother informed her that she had previously (circa 2005) served three and one-half years in federal prison for manufacturing methamphetamine. At the time Ms. Brice became involved in S.G.S.'s case, Mother was on probation from criminal charges in Gibson County. In interviews with Ms. Brice, Mother denied any illegal drug use during her pregnancy. However, based upon Mother's positive urine test, a nail sample was taken from Mother on May 29, 2012 . The nail test, which was admitted as trial exhibit 1, was positive for both amphetamine and methamphetamine. Also, on May 29, 2012, a sample of the child's hair was sent for drug testing. The results of the test, as set out in trial exhibit 2, showed that the child was positive for both methamphetamine and marijuana. While the results of the nail and hair analyses were pending, Mother had left the hospital with the child.

Following Mother's positive drug screen, the Madison County Metro Narcotics Unit conducted an investigation of Mother's home (where the child was also living at that time) on June 6, 2012. The Narcotics Unit discovered an active methamphetamine lab in a backyard shed on the property. Methamphetamine residue was also found in the bathroom inside the house. Mother was arrested and charged with initiating the process to manufacture methamphetamine, a felony under Tennessee Code Annotated Section 39-17-435. Although the initiation charge was ultimately dropped, [5] Mother was found guilty, following a jury trial, of possession of methamphetamine. For the charge of possession of methamphetamine, Mother received a sentence of eleven months and twenty-nine days of Community Correction. At the time of the hearing on termination of her parental rights, Mother was out of custody on an appeal bond.

Following Mother's arrest, on June 6, 2012, DCS removed S.G.S. from Mother's custody and placed her in the temporary custody of the maternal grandparents. However, this initial placement proved to be unsuccessful, and, on June 14, 2012, the child was placed in the temporary custody of her maternal uncle and his wife, where she has remained since that time.

On June 11, 2012, DCS filed a dependency and neglect petition in the Juvenile Court of Madison County. On October 16, 2012, the trial court entered an order on the dependency and neglect petition. Therein, the court found that the child was dependent and neglected under Tennessee Code Annotated Section 37-1-129(a) in that she "suffered from abuse and/or neglect, " and was the victim of "severe child abuse as defined at T.C.A.37-1-102[(b)](23)(A)(i) and (ii), (B) and (D), perpetrated by [T.S.]." The court further found that it was in the child's best interest to remain in the custody of her foster parents.

As evidenced by Mother's mugshot, which was admitted as trial exhibit 10, sometime between December 31, 2012 and January 2, 2013, she was arrested, in Madison County, for public intoxication. Mother testified that this charge was ultimately dismissed.

On July 29, 2013, the guardian ad litem, Kortney D. Simmons ("Appellee") filed a petition to terminate Mother's parental rights.[6] As grounds for the petition, Appellee alleged: (1) abandonment under Tennessee Code Annotated Section 36-1-113(g)(1) for willful failure to pay reasonable support for the child as defined at Tennessee Code Annotated Section 36-1-102(1)(A)(i), and wanton disregard for the welfare of the child as defined at Tennessee Code Annotated Section 36-1-102(1)(A)(iv); (2) persistence of the conditions that led to the child's removal from Mother's custody under Tennessee Code Annotated Section 36-1-113(g)(3); and (3) severe child abuse under Tennessee Code Annotated Section 36-1-113(g)(4), as that term is defined at Tennessee Code Annotated Section 37-1-102. By order dated July 29, 2013, and upon adjudication of indigency, a lawyer was appointed to represent Mother in this case.

On or about September 9, 2013, as set out in trial exhibit 8, Mother was arrested in Henderson County for felony vandalism for "knowingly caus[ing] damage to the victim's vehicle by throwing a cinderblock against the front windshield busting it and putting large dents in the driver's side/passenger's side door, [and] putting water in [the victim's] gas [tank]." Mother was further charged with vandalism "by damage to the siding on a house trailer, " and with domestic assault against her husband, M.S., "by hitting him with a baseball bat." These charges were incurred while Mother was on supervised community corrections. By Affidavit of the Madison County Department of Community Correction, entered on October 21, 2013, Mother was alleged to be in violation of the conditions of her community corrections sentence based upon her arrest on the foregoing charges. In addition to her arrest, Mother was further alleged to be in violation of her community corrections sentence for: (1) "fail[ing] to remain drug free . . .[and] test[ing] positive for Marijuana on September 18, 2013;" and (2) fail[ing] to report for [a] scheduled office visit with Community Corrections on September 25, 2013." A warrant was issued for Mother's arrest on October 21, 2013. These charges were pending against Mother at the time of the hearing on the petition to terminate her parental rights.

While the vandalism and domestic assault charges were pending, Mother petitioned the court, on September 13, 2013, to allow her visitation with S.G.S. In her petition, Mother stated, in relevant part, that:

During some portions of this process, Mother has been incarcerated. . . . At this time, however, Mother is living in stable housing in Madison County. She continues to undergo frequent drug screens, none of which have resulted in a positive finding for any drugs or other illegal substances. Mother is meeting as required with her probation officer and has completed all steps as required to this point in her criminal justice matter. Mother has obtained stable employment.

The guardian ad litem opposed visitation, alleging that "Mother is not a fit and proper caregiver. . . . Since the minor child has been [in DCS custody], Mother has been arrested at least two additional times, [aside from] her Methamphetamine [charges], and has had her probation revoked in Gibson County." Based upon the new criminal charges, the court denied Mother's request for visitation.

On November 5, 2013, the trial court heard the petition to terminate Mother's parental rights. By order dated December 4, 2013, the trial court terminated Mother's parental rights on grounds of: (1) "severe child abuse by the hands of Mother pursuant to T.C.A. §36-1-113(g)(4); and (2) persistence of the conditions that lead to the child's removal from Mother's custody pursuant to Tennessee Code Annotated Section 36-1-113(g)(3). The court also found, by clear and convincing evidence, that termination of Mother's parental rights was in the child's best interest.

II. ISSUES

Mother appeals. She raises two issues for review, which we restate as follows:
1. Did the trial court err in finding clear and convincing evidence to support the grounds for termination of Mother's parental rights?
2. Did the trial court err in finding that terminating Mother's parental rights was in the child's best interest?

III. STANDARD OF REVIEW

Under both the United States and Tennessee Constitutions, a parent has a fundamental right to the care, custody, and control of his or her child. Stanley v. Illinois, 405 U.S. 645, 651 (1972); Nash–Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn.1996). Thus, the state may interfere with parental rights only when a compelling interest exists. Nash–Putnam, 921 S.W.2d at 174–75 (citing Santosky v. Kramer, 455 U.S. 745 (1982)). Our termination statutes identify "those situations in which the state's interest in the welfare of a child justifies interference with a parent's constitutional rights by setting forth grounds on which termination proceedings can be brought." In re W.B., Nos. M2004-00999-COA-R3-PT, M2004–01572–COA–R3–PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005) (citing Tenn. Code Ann. § 36-1-113(g)). A person seeking to terminate parental rights must prove both the existence of one of the statutory grounds for termination and that termination is in the child's best interest. Tenn. Code Ann. § 36-1-113(c); In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

Because of the fundamental nature of the parent's rights and the grave consequences of the termination of those rights, courts must require a higher standard of proof in deciding termination cases. Santosky, 455 U.S. at 769. Accordingly, both the grounds for termination and the best interest inquiry must be established by clear and convincing evidence. Tenn. Code Ann. § 36-3-113(c)(1); In re Valentine, 79 S.W.3d at 546. Clear and convincing evidence "establishes that the truth of the facts asserted is highly probable ... and eliminates any serious or substantial doubt about the correctness of the conclusions drawn from the evidence." In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. ...


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