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In re Cloey R.

Court of Appeals of Tennessee, Knoxville

January 21, 2015

In re CLOEY R. et al.

Session Date: November 20, 2014

Appeal from the Juvenile Court for Rhea County No. 12-JV-61 James W. McKenzie, Judge

This is a termination of parental rights case, focusing on Cloey R. and Andrea H., the minor children ("Children") of Leonard H. ("Father") and Laura R. ("Mother"). The Children were taken into protective custody by the Tennessee Department of Children's Services ("DCS") on July 26, 2012, upon investigation of environmental neglect and the Children's exposure to controlled substances. On May 16, 2013, DCS filed a petition to terminate the parental rights of Father and Mother. Following a bench trial conducted on November 7, 2013, the trial court granted the petition upon its finding, by clear and convincing evidence, that (1) both parents failed to substantially comply with the reasonable responsibilities and requirements set forth in the permanency plan, (2) Father failed to legitimate Cloey R., and (3) Mother abandoned the Children by willfully failing to visit them for at least four months preceding the filing of the termination petition. The court further found, by clear and convincing evidence, that termination of both Father's and Mother's parental rights was in the Children's best interest. Father has appealed.[1] Upon careful review of the record, we reverse the trial court's termination of Father's parental rights for two reasons: (1) no permanency plan was admitted into evidence upon which the trial court's finding that Father failed to substantially comply with the plan could be based and (2) Father's standing as a putative biological father precluded the application of the statutory ground of failure to legitimate a child.

Andrew F. Tucker, Dayton, Tennessee, for the appellant, Leonard H.

Herbert H. Slatery, III, Attorney General and Reporter, and Ryan L. McGehee, 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 John W. McClarty, J., joined.



I. Factual and Procedural Background

As pertinent to this action, DCS became involved with the family in response to a July 26, 2012 referral alleging environmental neglect and exposure of the Children to controlled substances. At that time, Cloey was six years old, and Andrea was five years old. The referral was to the home of the maternal grandmother ("Grandmother"), with whom Mother and the Children had been residing. At the time of the referral, Mother was in custody at the Rhea County Jail on drug-related charges, and Grandmother was caring for the Children. The referral alleged that Father was the biological father of the Children, although Mother was still legally married to John K., with whom she had not resided for several years. A third child of Mother's, Trevor K., also resided with Grandmother and was removed into protective custody.[2]

DCS investigator Stephanie Raulston testified that when she investigated Grandmother's home on July 26, 2012, Grandmother was living there with the Children and a man purported to be her husband, D.W. Ms. Raulston described her observations of the home's condition and her interviews with the Children that day as follows:

Upon arriving at the house, there was broken glass on the front porch under an air conditioner. [Grandmother] answered the door. She let me in the house. There was a hole in the floor about the size of a baseball right next to the front door. I observed feces in the home and a strong smell of urine. They did have some small, what appeared to be, Chihuahua dogs in the home. The home was cluttered. There were roaches on the ceilings, on the walls, coming out of light fixtures in the kitchen, bedroom, living room. There were some dead roaches also observed in different areas of the home. The sink was full of dishes. In the kitchen, there were fifteen canned food items, cereal, Ramen noodles, spaghetti sauce. That was in one cabinet. The refrigerator had mayonnaise, eggs, cheese, and bologna. In the freezer, it had tater tots, Kool-Aid and ice.
The girls showed me their room. It was a very small room. It had a twin bed, a dresser, a closet. The closet was empty. It had no clothes in it. There were no sheets on the bed. There were no toys in the room. There were no items on the wall. There was a hole right outside in the wall, which appeared to be a hole from a dryer vent, but it wasn't covered. The children were observed to be dirty. Their clothes were dirty. They didn't know the last time they'd had a bath. Their feet were black, and their hair appeared to be unbrushed for several days, so it was starting to mat.
In the master bedroom, that's where [Grandmother] reported that she stayed. There were clothes piled up so much so that you couldn't see the floor. There was a washer in the hallway. [Grandmother] reported that it did work, and there were clothes piled around the washer.
I interviewed both girls. Cloey reported that her mother . . . was in jail for drugs. She lives with her nanny and her papaw, referring to [Grandmother] and [D.W.]. After she told me her mom was in jail for drugs, I asked her what drugs were. She said she didn't want to talk about it. She said she knows what they are, but she didn't want to talk about it. She said she had not seen her dad, referring to [Father], because he beat up her mom. Cloey said her mom and her dad are not supposed to be around each other.
I also interviewed Andrea. Andrea also stated she knows what drugs are, but she didn't want to talk about drugs. She said she witnessed her mom and dad punching each other. When asked about the cleanliness of the home, Andrea stated the dogs use the bathroom in the house, but nobody cleans it up, that's why there were feces in the floor and the strong smell of urine in the home. When I asked about their bedrooms and sleeping arrangements, Cloey said she covers up with the blanket, Andrea said she sleeps on the couch. Cloey also disclosed that the home has a lot of bugs and that they bite her. However, I did not observe any bug bites on the parts of her body I could see. She had on shorts and a t-shirt. I don't know what was under the clothes, if she had bug bites on her stomach or anything.
Cloey also reported that her mom sold all of her toys. Because I asked her, you know, where are your clothes? Where are your toys? And she said her mom sold all of her stuff, specifically her toys. So they didn't have any toys.

Ms. Raulston reported that toward the end of the interview with the Children, Cloey asked the investigators to stay until they had dinner because Grandmother would feed the Children if the investigators were there.

When interviewed on the day of the Children's removal, Grandmother stated that she knew her home was inappropriate for the Children. She stated that she had attempted "bug-bombing" the home but was unable to get rid of the bugs. She acknowledged taking hydrocodone for back pain but did not have a prescription. Ms. Raulston administered a drug screen, and Grandmother tested positive for amphetamine, benzodiazepine, methamphetamine, opiates, oxycodone, and marijuana. Ms. Raulston also interviewed D.W., who told her that he and Grandmother tried to keep the home clean but could not. D.W. tested negative for all controlled substances.

As to Father, Grandmother denied knowing his whereabouts. Prior to the July 2012 referral regarding the Children, Ms. Raulston had been investigating a previous referral, received on June 26, 2012, regarding Justice H., another child of Father's by a different mother.[3] Ms. Raulston had been able to contact Father regarding Justice via text message on July 10, 2012, two weeks prior to the instant referral. Father arranged to meet Ms. Raulston at the DCS office as a result of the July 10 message, but he never appeared. Ms. Raulston stated that after waiting for Father until a half-hour past their scheduled meeting time, she attempted to contact him again via telephone and text message, but he did not respond. Father again contacted her via text message on July 18, 2012, to say that he was renting a house and would bring a copy of the lease by the DCS office. Father, however, did not appear at the DCS office at that time and never delivered a copy of the lease. Ms. Raulston subsequently attempted to contact Father when the Children were removed into protective custody, utilizing the number Father had provided during the previous investigation, but the number was out of service.

On the day of the Children's removal, Grandmother gave Ms. Raulston the name of one relative as a possible foster placement, but upon investigation, that relative did not qualify. Grandmother did not offer any other family members as possible foster parents, and the Children were placed in a non-relative foster home. Ms. Raulston subsequently interviewed Mother at the jail on July 27, 2012. According to Ms. Raulston, Mother claimed she did not know Father's whereabouts and was adamant that DCS not place the Children with him due to his abusive behavior.

Father's first contact with DCS personnel after the Children's removal into protective custody was on August 1, 2012, when he appeared at the DCS office asking for information. Ms. Raulston and her supervisor met with Father on that day. He reported living at a home in Dayton, Tennessee, with a female roommate, C.R. He told Ms. Raulston at that time that he was employed with a local plumbing company, earning approximately $400.00 a week. Father disclosed what Ms. Raulston described as "a pretty lengthy criminal history." He provided a new cellular telephone number and explained that he had been employed at a different job requiring a great deal of overtime when Ms. Raulston had been unable to contact him.

DCS case manager Christina Walsh testified that a permanency plan was established during a child and family team meeting conducted by DCS with both parents on August 23, 2012. Ms. Walsh further testified in detail regarding the parents' responsibilities and requirements as set forth under the permanency plan, and Father acknowledged these responsibilities. No permanency plan was admitted into evidence at trial, however, and no permanency plan is in the record on appeal. The record also contains no date of entry for the trial court's ratification of the permanency plan or its subsequent revision.

According to Ms. Walsh, Father's responsibilities under the plan were to (1) submit to random drug screens, and upon any positive result for controlled substances, undergo an alcohol and drug assessment and follow resultant recommendations; (2) submit to a hair follicle drug screen if required by DCS; (3) ensure that the Children were supervised at all times by an appropriate, sober adult; (4) provide for the basic needs of the Children through a legal income; (5) maintain stable, appropriate housing; (6) resolve all legal issues and abide by all court orders; (7) follow all recommendations of the Children's medical and dental providers; (8) demonstrate involvement in the Children's education, including participation in Cloey's individualized education program ("IEP") meetings, (9) visit with the Children; and (10) pay child support as ordered.

At the time of the Children's removal into protective custody, Father faced a pending charge of arson in Rhea County Circuit Court. He was also subject to what the parties referred to as a "domestic bond" upon an allegation of domestic violence.[4] Subsequent to the establishment of the permanency plan in August 2012, Father incurred drug-related criminal charges in an incident occurring March 12, 2013. According to the Circuit Court judgments presented at the termination hearing, Father subsequently pled guilty to arson and to possession of less than .5 grams of methamphetamine, both Class C felonies, on September 6, 2013. Father was sentenced for these convictions to a combined effective sentence of four years, including one year of incarceration and three years of community corrections. Father testified at trial that he expected to be released into community corrections on December 13, 2013, and that he would be serving probation for a total of six years.

Ms. Walsh testified that during the time period that the Children had been in protective custody, Father had been incarcerated October 9, 2012, to October 10, 2012; October 24, 2012, to October 25, 2012; November 2, 2012, through December 4, 2012; December 6, 2012, through February 13, 2013; and March 12, 2013 through the date of trial of November 7, 2013. According to Ms. Walsh, at one point prior to his most recent incarceration, Father was arrested for violating a "domestic bond." Ms. Walsh testified that following the arrest for this violation, Father's visitation with the Children was supervised separately from Mother's visitation by foster parents in Rhea County. Also subsequent to establishment of the permanency plan, Mother was convicted of possession of a schedule II controlled substance, a misdemeanor, on February 12, 2013, and sentenced to eleven months, twenty-nine days of supervised probation.

Ms. Walsh further testified that the Children were adjudicated dependent and neglected as to both parents, an adjudication that, according to the termination petition, was entered by the juvenile court on December 20, 2012. It is undisputed that the permanency plan was revised on April 22, 2013, with Father present and with his responsibilities and requirements remaining essentially the same. Ms. Walsh reported that DCS also added the goal to the revised plan of seeking adoption for the Children in the event that reunification efforts proved unsuccessful. As with the original permanency plan, the revised plan was not admitted into evidence at trial and is not in the record on appeal.

On May 16, 2013, DCS filed a petition to terminate the parental rights of both parents, alleging grounds of (1) both parents' abandonment of the Children through failure to visit, (2) both parents' abandonment of the Children through failure to support, (3) both parents' substantial noncompliance with the permanency plan, (4) Father's abandonment of the Children through wanton disregard for their welfare prior to his incarceration, and (5) as to Cloey, Father's failure to establish paternity. Following a review hearing conducted on August 15, 2013, the trial court found that attempted service of process upon Mother had been ineffective and that Mother had failed to present herself to the court. In its order memorializing this review hearing, entered January 21, 2014, the court appointed counsel to represent Father and attorney Justin Angel as guardian ad litem for the benefit of the Children.

On November 7, 2013, the trial court conducted a bench trial, during which Father appeared while in the custody of the Rhea County Jail. At this point, the court found that Mother had been properly served with notice of the trial, but Mother failed to appear. In an order entered April 15, 2014, the trial court found that grounds existed to terminate the parental rights of both parents. As pertinent to Father's appeal, the court found, by clear and convincing evidence, that Father (1) failed to substantially comply with the reasonable responsibilities and requirements of the permanency plan as to both Children and (2) failed to legitimate Cloey. The court determined that DCS had failed to show clear and convincing evidence that Father abandoned the Children prior to his incarceration. Having found statutory grounds to terminate both ...

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