In re CHELSIA J. et al.
Assigned on Briefs October 13, 2014
Appeal from the Chancery Court for Campbell County No. 2012-CV-28 John D. McAfee, Judge
This is a termination of parental rights case, focusing on Chelsia J. and Jared J., the minor children (“Children”) of Fleesha J. (“Mother”) and Mark F. (“Father”). The Children were taken into protective custody by the Tennessee Department of Children’s Services (“DCS”) on April 28, 2011, upon investigation of the Children’s exposure to controlled substances in the parents’ home. On March 21, 2012, DCS filed a petition to terminate the parental rights of both parents. Following a bench trial conducted over the course of four days spanning more than a year’s time, the trial court found that grounds existed to terminate the parental rights of both parents upon its finding, by clear and convincing evidence, that (1) the parents abandoned the Children by failing to provide a suitable home, (2) the parents abandoned the Children by engaging in conduct prior to incarceration that exhibited wanton disregard for the Children’s welfare, (3) the parents failed to substantially comply with the reasonable responsibilities and requirements of the permanency plans, and (4) the conditions leading to the Children’s removal from the home persisted. At that time, however, the court denied the petition based upon its finding that termination was not in the best interest of the Children. DCS subsequently filed a motion to alter or amend the judgment. Following a subsequent hearing, the trial court granted the motion to alter or amend the judgment and terminated the parental rights of both parents upon its finding, by clear and convincing evidence, that termination was in the best interest of the Children. Mother has appealed.  We reverse the trial court’s finding that Mother abandoned the Children by engaging in conduct prior to incarceration that exhibited wanton disregard for the Children’s welfare. We affirm the trial court’s judgment in all other respects, including the termination of Mother’s parental rights.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part, Reversed in Part; Case Remanded
Robert R. Asbury, Jacksboro, Tennessee, for the appellant, Fleesha J.
Robert E. Cooper, Jr., Attorney General and Reporter, and Kathryn A. Baker, Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Children's Services.
Thomas R. Frierson, II, J., delivered the opinion of the Court, in which Charles D. Susano, Jr., C.J., and D. Michael Swiney, J., joined.
THOMAS R. FRIERSON, II, JUDGE
I. Factual and Procedural Background
DCS initially became involved with the family in response to a December 10, 2010 referral alleging exposure of the Children to controlled substances. At the time, Chelsia was two years old, and Mother was eight months pregnant with Jared. A DCS investigator attempted to interview Mother but found her uncooperative. Mother refused to submit to a drug screen and upon a follow-up visit, could not be located. DCS received a second referral on April 28, 2011, following Mother's arrest on drug-related charges. At that time, the Children were two years old and three months old respectively.
Upon investigation, DCS was unable to locate Father and removed the Children from the parents' home on April 28, 2011. The Children were placed with neighbors, R.D. and V.D., who knew the Children and volunteered to care for them. The Children were subsequently brought into foster care on May 12, 2011, although they remained with the same caregivers, R.D. and V.D., who became the Children's foster parents. On May 19, 2011, the Campbell County Juvenile Court entered an emergency protective custody order placing the Children in DCS custody and finding that DCS had made reasonable efforts to prevent removal of the Children from the parents' home. Following a proceeding conducted on August 18, 2011, at which both parents waived their respective rights to an adjudicatory hearing, the Juvenile Court adjudicated the Children dependent and neglected in an order entered September 8, 2011.
It is undisputed that when the parents waived their respective rights to an adjudicatory hearing, they stipulated to the facts alleged in DCS's amended petition for temporary custody, which was subsequently admitted as an exhibit, without objection, during the termination proceedings. According to these stipulated facts, Mother was arrested on April 28, 2011, after she was found by police officers in a vehicle parked in front of an abandoned house in the company of a man who possessed a baggie containing some methamphetamine and two partially loaded syringes. The man, unidentified in the petition, had run from the vehicle as officers approached, but he was subsequently caught and transported to the hospital after he admitted swallowing three grams of methamphetamine. Mother had needle marks "all over the bend of both arms" according to the petition.
Responding to a consequent referral requesting a welfare check on the Children, DCS case manager Brandi Smith found Jared at a residence in the care of a woman who claimed to be his grandmother. The woman could not remember the infant's name and appeared to be intoxicated. A police officer accompanying Ms. Smith observed what appeared to be a pill grinder, a burnt spoon, and used marijuana roaches at the residence. Ms. Smith proceeded to a neighboring residence, where she found Chelsia in the care of a non-relative, S.W., who lived at the residence with her husband. S.W. was seventeen years old and had been caring for Chelsia for three days. S.W. told Ms. Smith that Mother had dropped off Chelsia with only four diapers and two outfits on the previous Monday, April 25, 2011. S.W. had attempted to contact Mother the following day on April 26 to have her retrieve Chelsia, but S.W. had been unable to locate Mother.
According to the stipulated facts of the petition, Ms. Smith interviewed Mother on or about April 28, 2011, while Mother was incarcerated. Mother disclosed that she had been "shooting up" methamphetamine or "whatever was in the needle" with Father for approximately three weeks since Father was released from jail. Mother told Ms. Smith that she used to "snort pills" and acknowledged that she had a drug problem. At that time, Mother explained that she did not believe the Children should be with Father because of his drug problem.
During the termination proceedings, Mother questioned the truth of the facts to which she had stipulated during the dependency and neglect proceedings, but she was unable to specifically dispute them. When questioned regarding whether she was with Father on the day she was arrested, Mother answered: "No -- I don't know. I was so out of my mind. I don't even know." When further questioned regarding whether Ms. Smith had misrepresented the jailhouse interview, Mother stated: "I don't know. I was high." Mother acknowledged that upon her April 28, 2011 arrest, she tested positive for "marijuana, opiates, and methamphetamine" in her system. According to Mother's criminal history, admitted at trial, the April 28, 2011 arrest resulted in a conviction for possession of drug paraphernalia, a Class A misdemeanor. Mother incurred a sentence of eleven months and twenty-nine days, which was deferred upon Mother's paying court costs.
Prior to filing the petition for termination of parental rights, DCS developed two permanency plans for the Children. The first permanency plan was established on June 8, 2011, and ratified by the Juvenile Court on August 18, 2011. Under the plan, Mother's responsibilities and requirements were that she visit the Children at least 4.3 hours per month with age-appropriate food or other supplies in hand; attend meetings and court hearings regarding the Children; complete an alcohol and drug assessment and follow attendant recommendations; pass scheduled and random drug screens; complete a mental health assessment and follow attendant recommendations; complete parenting education classes and demonstrate parenting skills learned during visitation; provide a "reliable, stable, safe living environment, free from drug use, harm or abuse"; seek employment and provide proof of her search for or ultimate employment; resolve "legal issues"; and pay child support "as ordered." The stated goal of the first permanency plan was to reunify the Children with the parent and/or have the Children exit protective custody with a relative.
The second permanency plan was established on December 14, 2011, and ratified by the Juvenile Court on February 8, 2012. Mother's responsibilities and requirements under the second permanency plan remained the same as in the first plan. Within the second plan, DCS revised its stated goal to either reunify the Children with the parent or to seek adoption for the Children in the event that reunification efforts proved unsuccessful.
On March 21, 2012, DCS filed a petition with the Campbell County Chancery Court ("trial court") to terminate the parental rights of both parents, alleging grounds of abandonment by failure to provide a suitable home, abandonment by an incarcerated parent (as to both parents), substantial noncompliance with the permanency plans, and persistence of the conditions leading to removal of the Children from the parents' home. Following a hearing upon an affidavit of indigency filed by Mother, Chancellor Billy Joe White entered an order on May 1, 2012, appointing counsel for Mother and a guardian ad litem to represent the Children. Chancellor White also conducted an initial hearing on May 22, 2012, and entered an order that day, inter alia, setting trial for July 10, 2012. Due to Chancellor White's subsequent illness, Circuit Judge John D. McAfee heard the case by interchange thereafter.
A bench trial commenced on July 10, 2012, during which the trial court heard the testimony of several witnesses, including the Children's maternal grandmother, Vanessa J. ("Grandmother"). At the close of that day's proceedings, the court continued the trial to allow Grandmother an opportunity to file an intervening petition. Grandmother subsequently filed an intervening petition seeking custody of the Children on July 27, 2012. The bench trial reconvened a year later and was held over the course of three additional days: July 12, 2013; July 22, 2013; and August 16, 2013. Grandmother failed to appear during the July and August 2013 proceedings and did not further pursue her intervening petition.
In an order entered November 18, 2013, the trial court found that grounds existed to terminate the parental rights of both parents. As pertinent to Mother's appeal, the court found, by clear and convincing evidence, that (1) Mother abandoned the Children by failing to provide a suitable home, (2) Mother abandoned the Children by engaging in conduct prior to incarceration that exhibited wanton disregard for the Children's welfare, (3) Mother failed to substantially comply with the reasonable responsibilities and requirements of the permanency plans, and (4) the conditions leading to the Children's removal from Mother's home persisted. The court also specifically found that DCS had made reasonable efforts to assist Mother in establishing a suitable home and substantially complying with the permanency plans.
The trial court further found in its November 18, 2013 order, however, that DCS had failed to establish clear and convincing evidence that termination of parental rights would be in the Children's best interest. Although the court credited testimony that the Children were flourishing in the foster parents' care and that the foster parents wished to adopt the Children, the court expressed concern that DCS could not assure that adoption by the foster parents would definitely take place upon termination of Mother's and Father's parental rights. The court therefore denied the petition and determined that the Children should remain in protective custody and foster care.
DCS subsequently filed a motion to alter or amend the judgment pursuant to Tennessee Rule of Civil Procedure 59.04. Following a hearing conducted on February 10, 2014, the trial court determined that its prior ruling regarding the best interest of the Children had been inconsistent with relevant statutes and precedent. The court entered an amended final judgment on March 4, 2014, finding by clear and convincing evidence that termination of Mother's and Father's parental rights was in the Children's best interest. Mother timely appealed.
II. Issues Presented
On appeal, Mother presents three issues, which we have restated as follows:
1. Whether the trial court erred by finding clear and convincing evidence of grounds to terminate Mother's parental rights to the Children, particularly that (1) Mother abandoned the Children by failing to provide a suitable home, (2) Mother abandoned the Children by engaging in conduct prior to her incarceration that exhibited wanton disregard for the welfare of the Children, (3) Mother failed to substantially comply with the responsibilities and requirements of her permanency plans, and (4) the conditions leading to the Children's removal from Mother's home persisted.
2. Whether the trial court erred by finding that DCS made reasonable efforts to assist Mother in substantially complying with the responsibilities and requirements set forth in her permanency plans.
3. Whether the trial court erred by finding clear and convincing evidence that it was in the best interest of the Children to terminate Mother's parental rights.
III. Standard of Review
In a termination of parental rights case, this Court has a duty to determine "whether the trial court's findings, made under a clear and convincing standard, are supported by a preponderance of the evidence." In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006). The trial court's findings of fact are reviewed de novo upon the record, accompanied by a presumption of correctness unless the evidence preponderates against those findings. Id.; Tenn. R. App. P. 13(d). Questions of law, however, are reviewed de novo with no presumption of correctness. In re Bernard T., 319 S.W.3d 586, 597 (Tenn. 2010). The trial court's determinations regarding witness credibility are entitled to great weight on appeal and shall not be disturbed absent clear and convincing evidence to the contrary. See Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).
"Parents have a fundamental constitutional interest in the care and custody of their children under both the United States and Tennessee constitutions." Keisling v. Keisling, 92 S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that "this right is not absolute and parental rights may be terminated if there is clear and convincing evidence justifying such termination under the applicable statute." In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988) (citing Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)). As our Supreme Court has instructed:
In light of the constitutional dimension of the rights at stake in a termination proceeding under Tenn. Code Ann. § 36-1-113, the persons seeking to terminate these rights must prove all the elements of their case by clear and convincing evidence. Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H., 215 S.W.3d at 808-09; In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). The purpose of this heightened burden of proof is to minimize the possibility of erroneous decisions that result in an unwarranted termination of or interference with these rights. In re Tiffany B., 228 S.W.3d 148, 155 (Tenn. Ct. App. 2007); In re M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct. App. 2005). Clear and convincing evidence enables the fact-finder to form a firm belief or conviction regarding the truth of the facts, In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005), and ...