Assigned on Briefs January 16, 2015
This is a termination of parental rights case. The court-appointed Guardian ad Litem (“the Guardian”) for the minor child Jonathan F. (“the Child”) filed a petition in the Juvenile Court for Sevier County (“the Juvenile Court”) seeking to terminate the parental rights of Amy F. (“Mother”) and Uriah F. (“Father”) to the Child. The Department of Children’s Services (“DCS”) filed a response joining in the Guardian’s petition. After a trial, the Juvenile Court terminated Mother’s and Father’s parental rights on a host of grounds. We vacate certain of the grounds as relates to Father. Otherwise, we affirm the termination of Mother’s and Father’s parental rights to the Child. We affirm the judgment of the Juvenile Court as modified.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed as Modified; Case Remanded
Appeal from the Juvenile Court for Sevier County No. 13001830 Jeff Rader, Judge
Timothy J. Gudmundson, Sevierville, Tennessee, for the appellant, Amy F.
Gregory E. Bennett, Seymour, Tennessee, for the appellant, Uriah F.
Herbert H. Slatery, III, Attorney General and Reporter, and, Ryan L. McGehee, Assistant Attorney General, for the appellee, the Tennessee Department of Children's Services.
Robert L. Huddleston, Guardian ad Litem for Jonathan F.
D. Michael Swiney, J., delivered the opinion of the Court, in which John W. McClarty and Thomas R. Frierson, II, JJ., joined.
D. MICHAEL SWINEY, JUDGE
The Child was born in March 2009. Mother and Father, the Child's parents, had an unusual living arrangement whereby Father's girlfriend moved in with the family to serve as the "babysitter." Father and his girlfriend later had an altercation that resulted in Father's arrest. In February 2013, the Child was removed from Mother's home due to drug and alcohol issues in the home. Father had been incarcerated in January 2013, and, in April of that year, was convicted of four counts of assault, aggravated assault, aggravated assault with bodily harm, and child abuse and neglect. Carol Davis ("Davis"), a DCS family services worker, was assigned to the Child's case. DCS provided various services for the parents over the course of the case. In February 2013, Mother was ordered to pay $50.00 per month in child support. Permanency plans were developed for Mother and Father. In May 2013, the Child was adjudicated dependent and neglected. The Guardian filed a petition for termination of parental rights as to Mother and Father in December 2013, a petition DCS joined. Trial was held in May 2014.
Davis testified that Mother, while compliant with some aspects of her permanency plan, continued to struggle with substance abuse. Upon Mother's most recent arrest, Davis no longer believed that Mother could provide a safe and stable home. Davis testified to Mother frequently having transportation and job conflicts with in-home services. Regarding Mother's employment, Mother worked at both Johnson's Inn and Dunkin Donuts from March 2013 through around June 2013. Sometime before June 2013, however, Mother stopped working at Dunkin Donuts. Regarding Father, Davis interviewed him in jail and learned that alcohol was a driver of his violent behaviors. According to Davis, the Child has several special needs issues such as developmental delay. As of trial, the Child was in a foster home where he is well-adjusted.
Mother testified she had been arrested in March 2014 after marijuana and drug paraphernalia were found at her home. In spite of the fact that green leafy substance, scales, and other such articles were situated on a table in the living room, Mother claimed she was unaware that these items were in her home. Mother was working at Johnson's Inn and paying $200 per week in rent. Mother also received food stamps. Mother had made only one documented payment of $50 toward child support. She was required to pay $750 during the relevant period. Regarding why she had not made all the child support payments as required, Mother stated that her income simply was not enough to cover her expenses. Nevertheless, Mother planned to make a $100 payment toward child support on the day of the hearing. Mother acknowledged having relapsed on drugs, but believed that she would remedy the problem if given more time.
Father, who had been treated for cancer while incarcerated, testified that he was a changed man. Father was scheduled to be released from prison in 2018, but he believed he would be released earlier for good behavior. Regarding his violent past, Father testified that in one instance, he beat someone up who beat up his legless uncle. On the other offense, Father testified that he never harmed the Child, but admitted that he shoved his girlfriend while she was holding the Child. While incarcerated, Father had completed a number of courses and attended Alcoholics Anonymous.
In a June 2014 order, the Juvenile Court terminated the parental rights of Mother and Father to the Child. The Juvenile Court made thorough and detailed findings of fact and conclusions of law, which we quote from:
ABANDONMENT – BY INCARCERATED PARENT
(as to the Father)
T.C.A. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(iv), -102(1)(C) and -102(1)(E)
This ground applies only to [Father]. It has been alleged that [Father] abandoned [the Child] because he willfully failed to visit the child or engaged in token visitation in the four (4) months preceding the filing of this Petition. However, the relevant time period would actually extend to prior to the custodial episode due to [Father] having spent the entirety of this case in the custody of either the Sevier County Sheriff or the Tennessee Department of Corrections. It was uncontroverted that [Father] has been incarcerated for all of the time during the four (4) months preceding this Petition, having been incarcerated throughout the entirety of [the Child's] custodial episode and currently serving a sentence in the custody of the Tennessee Department of Corrections for violations of his prior probation and for the new charges he incurred. It was alleged that [Father] did not have meaningful contact with the minor child during all or part of the four (4) months immediately preceding the beginning of his latest sentence, which the Tennessee Department of Corrections indicates began on June 15, 2013. However, the evidence presented at trial indicates that [Father] spent the entirety of this case incarcerated, as he spent the time from January 8, 2013 through the imposition of his sentence on June 15, 2013 awaiting disposition of his criminal cases in the custody of the Sevier County Sheriff. Therefore, the relevant time period would be September 8, 2012 through January 8, 2013.
Upon the testimony presented at trial and especially the argument of counsel for the Department, the trial court finds that [Father] abandoned his child through failure to have meaningful visitation with [the Child] during the requisite time period referenced above. Instead of focusing on raising his son, [Father] instead chose to spend time with his young girlfriend, Nikki [D.], and engage in other criminal acts, including his admitted use of marijuana. Further proof of such is shown in that [Father] was also arrested during the requisite time period for an Aggravated Assault on a victim where the injuries included a subdural hematoma. Additionally, there was a stipulation during the dependency and neglect portion of the case that the home was bare of food and basic essentials. [Father] offers no credible proof that he was providing for the child in any other form besides what could be described as token support. The trial court finds that clear and convincing evidence demonstrates that [Father] abandoned his child through his behaviors for the four (4) months prior to his continued incarceration.
ABANDONMENT – FAILURE TO SUPPORT
(as to the Mother)
T.C.A. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(I), -102(1)(B) and -102(1)(D)
It was alleged that [Mother] has abandoned [the Child] because she willfully has not supported the child or has made only token payments toward the children's support in the four (4) months immediately preceding the filing of this Petition. By previous Order of this Court, dated June 14, 2013, [Mother] was ordered to pay $50.00 per month for the current support of the minor child. Testimony at trial, along with documentary evidence introduced as to her pay history through the Tennessee Department of Human Services, Child Support Enforcement Services, Non-Custodial Parent Payment Summary, showed that [Mother] had made one single payment of $50.00, credited on August 21, 2013. The requisite time period for the four (4) months prior to the filing of the Petition was from August 16, 2013 to December 16, 2013. The one sole payment credited to [Mother] does fall within the requisite four (4) month period, albeit by a matter of days. With the time that it naturally takes for a money order to be purchased, sent to the Child Support Central Receiving Unit in Nashville, and eventually credited to the proper account, it is more than likely correct to state that the one payment that [Mother] made during the entirety of the case was actually placed into the mail prior to the four (4) month period, even if it was credited during that four (4) month period. Even if the trial court was to consider this one payment to be in the four (4) month time period, it is token in nature as it applies to [Mother].
[Mother] is able-bodied and capable of working and earning enough to support herself as well as paying child support. Testimony at trial indicated that she had worked at several different jobs during the custodial episode, including one period of employment at Dunkin Donuts which, it appears, ended on her own volition. There was no testimony that [Mother] has applied for Social Security Disability due to any permanent physical or mental affliction. Nor was there proof presented to lead to the conclusion that [Mother] was in jail or incapacitated for any substantial period of time in the four (4) months before this Petition was filed. Indeed, [Mother's] own testimony leads to the conclusion that she was working – one job or two jobs, depending on that date – but not paying support. [Mother] did not pay any substantial support for the minor child in the four (4) months prior to the filing of the Petition. This claim has been substantiated through testimony and documentary proof. Furthermore, both the Department and Guardian ad Litem elicited testimony from [Mother] that indicated that [the Child] was not the only active child support case in which she was failing to provide support. Testimony was provided that showed that [Mother] knew how to make payments, as she had a long history of making payments throughout the years leading up to 2010, but had failed to make a payment in that other case in nearly two (2) years with one single payment having been made in 2012 and none in 2011, 2013, or 2014. In addition, there was no testimony that demonstrated any gifts or other things of value that would count as anything more than token support. [Mother] willfully failed to provide support for the care of [the Child] for the requisite four (4) month time period despite having the ability to do so.
When the parties were last before the court two (2) weeks ago, [Mother] indicated that she had submitted another $50.00 payment the week prior as part of a permanency hearing. As indicated by the Guardian ad Litem and the Department, there is no proof of that payment having ever been made. [Mother] provides no proof as to why there is no record of this payment, only that the payment must have been sent to the wrong address. Given her previous history with paying child support and the complete lack of proof as to her reasoning why her sworn account of this payment was not true, the court finds that only one payment has ever been made by [Mother].
[Mother] was able to provide regular support for the care of [the Child], although she simply did not do so. Despite having reported employment throughout the case, [Mother] failed to provide support in the amount that would rise to anything but token support. [Mother] did not provide support besides being on notice that failure to do so could result in the termination of her parental rights. In addition, [Mother] admitted in her responses to the Request for Admissions submitted by the Department that she had failed to pay her child support as ordered. That being the case, the trial court finds by clear and convincing evidence that [Mother] abandoned [the Child] by willfully failing to support the minor child for the four (4) months immediately preceding the filing of this Petition.
SUBSTANTIAL NONCOMPLIANCE WITH PERMANENCY PLAN
(as to both Mother and Father)
T.C.A. §§ 36-1-113(g)(2) and 37-2-403(a)(2)
After [the Child] came into State's custody on February 1, 2013, the Department of Children's Services created permanency plans for [Father] and [Mother]. The permanency plan listed a number of requirements that the Respondents needed to satisfy before the minor child could safely be returned home. The initial plan gave the Respondents until August 1, 2013, to satisfy those requirements, with a revised permanency plan extending the ...