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In re V.L.J.

Court of Appeals of Tennessee, Knoxville

December 30, 2014

In re V.L.J. et al.

Session October 28, 2014

Appeal from the Circuit Court for Blount County No. E-24813 Tammy M. Harrington, Judge No. E2013-02815-COA-R3-PT

Andrew O. Beamer, Knoxville, Tennessee, for the appellant, D.G.B. John T. Sholly, Knoxville, Tennessee, for the appellant, D.C.B.

Robert E. Cooper, Attorney General & Reporter, and Kathryn A. Baker, Assistant Attorney General, Office of the Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Children's Services.

Charles D. Susano, Jr., C.J., delivered the opinion of the Court, in which John W. McClarty and Thomas R. Frierson, II, JJ., joined.

OPINION

CHARLES D. SUSANO, JR., CHIEF JUDGE

I.

At the center of this case are four minor children – siblings E.B., I.B., and S.B., and their older half-sister, V.L.J.[1] (collectively, the Children). Mother and Father are the parents of the younger three children, and Father is the stepfather of V.L.J. In 2008, Mother, Father and the Children moved to Tennessee. DCS first became involved with the family in March 2009. V.L.J., then nine, threatened to commit suicide. In response, Mother admittedly handed the child a knife and encouraged her to "go ahead" and do it. Mother explained it was her attempt at "reverse psychology." Following the incident, DCS took V.L.J. into temporary, protective custody, and placed her in foster care. In the course of its ensuing investigation, DCS discovered that Mother had an outstanding felony warrant out of Texas. She was arrested, extradited and subsequently incarcerated there from April 2009 until September 2010.

In Mother's absence, Father maintained custody of the three remaining children. In July 2009, DCS received a referral alleging that Father had physically abused I.B. E.B. corroborated his brother's assertion that Father was responsible for red marks observed on I.B.'s back and neck, including a hand-shaped print. In its petition for temporary custody, DCS further alleged that, in Father's care, the children were living in "deplorable" conditions. More specifically, DCS alleged that their home was filthy, with trash everywhere and feces on the floors. Father's rent was three months past due. The Children were removed into protective custody. In juvenile court, they were adjudicated dependent and neglected after Mother and Father waived a hearing and stipulated that the children were dependent and neglected based on their living conditions.[2]

After all four children had entered state custody, a DCS team, together with Mother and Father, developed permanency plans. The first plans, one for V.L.J. and another for the other three children, were implemented in 2009 and had a goal of reunification or exit custody with a relative. Several revised plans followed that essentially contained the same requirements. Generally summarized, Mother and Father were required to obtain and maintain appropriate housing; promptly notify DCS of any changes in circumstances; attend the Children's various appointments; obtain and maintain transportation and insurance; obtain and maintain a legal income source for at least six months with verification provided to DCS; provide child support; participate in mental health assessments; follow all related recommendations and provide verification to DCS; follow all court orders; address any legal issues; refrain from any illegal activity; and avoid any new criminal charges. In addition, the plan required Father to complete anger management classes and provide documentation to DCS, while Mother was required to complete an alcohol and drug assessment; submit to random drug screens; and remain drug-free. Mother and Father signed the plans as well as the criteria and procedures for termination that were provided to them. In 2011, the plans were consolidated into a family plan covering all four children. Between 2009 and the time of trial in 2013, the plan was updated five times. With the exception of a plan dated October 3, 2012, each plan was approved by the trial court, which expressly found that "the responsibilities outlined in the plan are reasonably related to the achievement of the goal, are related to remedying the conditions which necessitated foster care, and are in the best interests of the [Children]."

In the summer of 2009, within weeks of the Children's entry into foster care, Father moved to Texas. He failed to notify DCS of his move. While in Texas, Father drove a truck for a concrete company for over seven months and completed anger management classes. In prison, Mother completed her GED and kept in contact with the Children by writing letters to them as often as she could. After serving eighteen months, she was released in September 2010. By November 2010, Mother and Father had returned to Tennessee. They moved from place to place – from the home of Father's brother, to a one-bedroom and then a two-bedroom apartment. Back in Tennessee, Father completed parenting classes and underwent a mental health assessment which made no further recommendations.

A revised permanency plan dated January 2011 noted that the "parents do not have a stable home, income, transportation or a concrete plan to obtain these essential items." In August 2011, Mother was ordered to pay child support. By September 2011, two years after the initial permanency plan was established, Mother was employed and she and Father had found housing. Transportation remained an issue and each was advised to maintain the progress they had made, and avoid any new legal/criminal issues or otherwise engage in illegal activity. The September 2011 revised plan expressly stated: "Should . . . each of the parents fail to fully complete any and all of the tasks set forth in this Plan . . . [DCS] will finalize in seeking permanent homes for each of the children." Mother and Father signed to indicate their understanding of and agreement with the plan. In ratifying the plan following a November 2011 hearing, the juvenile court found that both parents were then in substantial compliance with the plan requirements, but noted that the lack of a transportation plan still presented a barrier to the Children exiting foster care.

In March 2012, Mother twice failed drug screens administered by DCS. The next month, Mother left Father and moved back to Texas. According to Mother, she did so because her case worker had advised her that she would never regain custody of the Children if she continued to live with Father. She remained in Texas until August 2012. On her return to Tennessee, their case worker, Ms. Haley, met with Mother and Father and personally reviewed the latest revised plan with them. Mother refused to submit to a drug screen at the meeting. At trial, Ms. Haley testified that Mother told her she had been on various drugs while in Texas. At the time of the meeting, Mother and Father were unemployed and did not have stable housing. Since Mother had returned from Texas, she and Father briefly lived in a tent in a friend's backyard, then moved into a motel, and finally leased a room from an elderly man to whom they provided assistance. The latter home, located on Grandview Avenue, was, by all accounts, unsuitable for the Children. Mother testified that despite their efforts at cleaning, the smell of cat urine lingered. In October 2012, both parents, who had been regularly visiting the Children, were granted unsupervised visits. Some weeks later, the privilege was revoked after Mother failed a drug screen.

On January 16, 2013, DCS filed a petition to terminate parents' rights. At that time, Mother and Father continued to reside in the Grandview Avenue home for several more months. Father, who had been unemployed since leaving Texas three years earlier, had just begun working for the same company as Mother. In February 2013, Father was ordered to pay child support.

Trial began in September 2013. At that time, the Children ranged in age from six to fifteen. All four had been in state custody since 2009. Mother denied that she was using marijuana, but tested positive for the substance on the first day of trial. Between the time the petition was filed and the time of trial, both parents became employed and moved from Grandview Avenue to a suitable home. In June 2013, Mother enrolled in an intensive outpatient drug treatment program. She said she had recently seen a mental health counselor and had an appointment to see a psychiatrist in November 2013.

After trial, the court found, as to Mother, that she abandoned the Children by failing to support them and that she failed to comply substantially with the terms of the parenting plan. As to Father, the court found these same grounds plus abandonment by failure to provide a suitable home and persistence of conditions applied. The court further determined that termination of both Mother's and Father's rights was in the Children's best interest. Mother and Father, represented by separate counsel, filed timely notices of appeal.

II.

Mother and Father each filed an appellate brief. They present issues for our review which we have restated slightly. As to Mother, the issues are as follows:

1. Whether the trial court erred by terminating Mother's parental rights for failure to pay child support.
2. Whether the trial court erred by terminating Mother's parental rights for failure to comply substantially with the permanency plan.
3. Whether there is clear and convincing evidence to support the trial court's finding that termination of Mother's parental rights is in the best interest of the Children.

Father presents the following issues:

1. There is insufficient evidence to support the trial court's finding that multiple statutory grounds exist to terminate Father's parental rights.
2. The trial court erred in terminating Father's rights on the ground of "persistence of conditions" absent a finding of dependency, neglect, or abuse based on clear and convincing evidence.
3. The trial court erred by finding that it was in the Children's best interest to terminate Father's parental rights.

III.

With respect to parental termination cases, this Court has observed:

It is well established that parents have a fundamental right to the care, custody, and control of their children. While parental rights are superior to the claims of other persons and the government, they are not absolute, and they may be terminated upon appropriate statutory grounds. A parent's rights may be terminated only upon "(1) [a] finding by the court by clear and convincing evidence that the grounds for termination of parental or guardianship rights have been established; and (2) [t]hat termination of the parent's or guardian's rights is in the best interest[] of the child." Both of these elements must be established by clear and convincing evidence. Evidence satisfying the clear and convincing evidence standard 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 Angelica S., E2011-00517-COA-R3-PT, 2011 WL 4553233 at *11-12 (Tenn. Ct. App. E.S., filed Oct. 4, 2011) (citations omitted).

On our review, 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 preponderance of the evidence is against those findings. Id.; Tenn. R. App. P. 13(d). Great weight is accorded the trial court's determinations of witness credibility, which will not be disturbed absent clear and convincing evidence to the contrary. See Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002). Questions of law are reviewed de novo with no presumption of correctness. Langschmidt v. Langschmidt, 81 S.W.3d 741 (Tenn. 2002). We proceed mindful that only a single statutory ground must be clearly and convincingly established in order to justify a basis for termination. In re Audrey S., 182 S.W.3d 838, 862 (Tenn. Ct. App. 2005).

IV.

As earlier noted, the trial court found that multiple grounds for termination exist as to both Mother and Father. As previously noted, they each challenge the sufficiency of the evidence to support grounds for termination. Two grounds are applicable to both parents –abandonment by failure to provide child support and substantial non-compliance with a permanency plan. With respect to these grounds, Tenn. Code Ann. § 36-1-113 provides as follows:

(g) Initiation of termination of parental or guardianship rights may be based upon any of the grounds listed in this subsection (g). The following grounds are cumulative and non-exclusive, so that listing conditions, acts or omissions in one ground does not prevent them from coming within another ground:
(1) Abandonment by the parent or guardian, as defined in § 36-1-102, has occurred;
(2)There has been substantial noncompliance by the parent or guardian with the statement of responsibilities in a permanency plan pursuant to the provisions of title 37, chapter 2, part 4;

Tenn. Code Ann. § 36-1-113(g)(1), (2). In turn, Section 36-1-102, for purposes of subsection (1), defines "abandonment, " in relevant part, to mean that:

(i) For a period of four (4) consecutive months immediately preceding the filing of a proceeding or pleading to terminate the parental rights of a parent or parents or a guardian or guardians of the child who is the subject of the petition for termination of parental rights or adoption, that the a parent or parents or a guardian or guardians either have willfully failed to visit or have willfully failed to support or have willfully failed to make reasonable payments toward the support of the child;

Tenn. Code Ann. § 36-1-102(1)(A)(i). Further, "token support" means that the support, under the circumstances of an individual case, is not significant considering the parent's means. See Tenn. Code Ann. § 36-1-102(1)(B). We examine the grounds for termination in light of the proof at trial.

V.

A.

We focus on the ground of abandonment by failure to pay child support. See Tenn. Code Ann. ยงยง 36-1-113(g)(1); 36-1-102(1)(A)(i). In the present case, the four-month period for purposes of establishing abandonment by non-support is September 16, ...


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