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In re Brian M.

Court of Appeals of Tennessee, Knoxville

January 6, 2015

In re Brian M, et. al.[1]

Session Date November 20, 2014

Appeal from the Juvenile Court for Knox County No. 71148 Hon. Timothy E. Irwin, Judge

James E. Corcoran, III, Knoxville, Tennessee, for the appellant, Brian M. Linda C. Cole, Knoxville, Tennessee, for the appellees, Percy L. and Rosina L.

Robert E. Cooper, Jr., Attorney General and Reporter, and Paul Jordan Scott, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee, Department of Children's Services.

Kelly A. Wojciechowski, Maryville, Tennessee, guardian ad litem for the minor children, Brian M. and Brianna M.

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

Brian M. and Brianna M. (collectively "the Children") were born to Rebecca L. ("Mother") and Brian M. ("Father") in September of 2011. The Children, twins, were born premature at 24 weeks and remained in the hospital for approximately six months after their birth. The Children continued to have medical issues due to their premature age.

On March 5, 2012, Father was arrested after he was found with two bags of cocaine and a handgun. Father later entered guilty pleas to possession of cocaine with intent to sell, a Class B felony, and possession of a firearm during the commission of a felony, a Class D felony. He received a sentence of eight years for the Class B felony and a consecutive sentence of three years for the Class D felony, for a total effective sentence of 11 years in the Department of Correction.

Two months later, the Tennessee Department of Children's Services ("DCS") removed the Children from Mother's care after receiving a "report of harm due to [Mother's] substance abuse issues . . . and the [C]hildren's medically fragile condition." Mother tested positive for "benzodiazepines, oxycodone, opiates, and marijuana." The Children were placed in a medically fragile foster home because Father was unable to care for the Children due to his incarceration.

Approximately four months later, the paternal grandparents, Percy L. ("Grandfather") and Rosina L. ("Grandmother") (collectively "Grandparents"), filed a petition for custody of the Children. Grandparents are residents of Georgia. Shortly thereafter, the court entered an agreed order, finding the Children dependent and neglected and directing the State of Georgia to complete a home study for Grandparents pursuant to the Interstate Compact for the Placement of Children ("ICPC"). The trial court later denied the petition for custody after learning that Grandparents' home was not approved pursuant to the ICPC because their employment required extensive travel that was not conducive to caring for the medically fragile children. The court advised Grandparents that their petition would remain "open for the indefinite future" and that they were "free to pursue whatever course of action they desire[d] with regard to the ICPC denial."

On September 16, 2013, DCS filed a petition to terminate Father's parental rights, alleging that termination of his parental rights was appropriate based upon his wanton disregard of the Children's welfare and his incarceration pursuant to Tennessee Code Annotated section 36-1-113(g)(6).[2] Four months later, Grandparents filed a motion to intervene and a corresponding motion to continue the termination proceeding until a second home study could be completed. Likewise, Father also filed a motion, requesting the court to grant the custody petition and to allow Grandparents' intervention in the termination proceeding. In the alternative, Father sought a stay of the termination proceeding to pursue an interlocutory appeal regarding the applicability of the ICPC to a relative placement.

A hearing was held on the motions filed by Grandparents and Father. The trial court denied the motion to intervene, finding that the grandparent relationship did not "support intervention as of right in a termination of parental rights case, particularly where delay is to be avoided." The court noted that Father supported Grandparents' pursuit of custody and was in a position to represent their interest in the termination proceeding. The court also denied the alternative motion to stay the termination proceeding, finding that the ICPC was applicable to the custody case. Father joined with the motion to continue the termination proceeding, and the court accepted proof on the motion.

Grandmother testified that she and Grandfather currently live in Atlanta, Georgia and were both employed in the medical field as nurses. She stated that her employment required her to travel to California on a frequent basis. She recalled that she had prepared rooms for the Children in her home, a six-bedroom, 4-bath residence, and asserted that her residence was appropriate for the Children. She acknowledged that she was ultimately denied as a placement for the Children because of her employment. She asserted that if she were approved as a placement and given custody of the Children, she would accept employment with a local home-health agency, allowing her to remain in Georgia. She claimed that her mother and aunt agreed to care for the Children while she worked. She conceded that neither her mother nor her aunt had met the Children. She related that she was familiar with the Children's unique medical needs and that her employment provided her with the medical background necessary to care for the Children. She acknowledged that she had only visited the Children twice since the time of removal and that Grandfather had not visited the Children. She claimed that if given the chance, she would bond with the Children and provide a suitable home.

Citing the Children's need for permanency, the court denied the motion to continue and began the hearing on the termination petition. DCS submitted certified copies of Father's criminal convictions, including his convictions for theft, a Class E misdemeanor, and aggravated assault, a Class A misdemeanor, arising from an altercation he had with Mother on October 18, 2010, approximately 11 months before the Children were born. DCS also submitted certified copies of Father's felony criminal convictions that resulted in his 11-year sentence in the Department of Correction.

David Potter testified that he is employed by DCS and was assigned to the Children's case. He recalled that the Children were born premature at 24 weeks and were not released from the hospital until they were approximately six months old. He asserted that the Children resided with Mother for approximately two months until they were removed by DCS. He related that Father had been incarcerated since the time of removal. He claimed that the Children were doing well and had remained together in the same foster home since the time of removal. He stated that Brian was able to walk, while Brianna was taking steps with assistance. He related that they had improved by "leaps and bounds" since the time of removal.

Foster Mother testified that the Children lived with her and her husband and daughter, who was six years old at the time of the hearing. She related that her daughter interacted well with the Children and that she and her husband intended to adopt the Children. She asserted that she loved the Children and was willing to care for each child's unique medical needs. She related that Brian suffered from intellectual development issues, namely he was unable to talk, continually grunted, threw "temper-tantrums, " routinely banged his head on hard surfaces, and suffered from separation anxiety. She doubted his ability to progress in an academic setting. She also stated that he was unable to eat solid foods. She asserted that Brianna was "very bright" even though she still had a limited vocabulary. She stated that Brianna was able to chew solid foods but still required the use of a gastrostomy tube at night. She related that Brianna was able to walk with assistance and would "scoot around' without assistance. She claimed that Brianna would likely remain in a wheelchair because of muscle deficiency. She opined that Brianna handled her frustration by screaming, biting, or smacking and also suffered from separation anxiety. She related that the Children each routinely visited numerous doctors for their respective medical needs.

Father testified that he thought the Children should be placed with his mother, who had never mistreated him. He claimed that Mr. Potter did not provide any assistance with DCS services and simply instructed him that his rights would be terminated if he received a sentence in excess of ten years.

Following the presentation of the above evidence, the trial court terminated Father's parental rights on the statutory grounds of abandonment for wanton disregard of the Children's welfare and confinement under a sentence of ten years or more pursuant to Tennessee Code Annotated section 36-1-113(g)(6). The court further held that termination of Father's parental rights was in the best interest of the Children. Father filed a timely notice of appeal.

II. ISSUES

We restate the issues raised on ...


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