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In re Agustine R.

Court of Appeals of Tennessee, Knoxville

March 17, 2015

In re AGUSTINE R., ET. AL. [1]

January 13, 2015 Session

Appeal from the Juvenile Court for Sevier County Nos. 130162, 130163 Hon. Jeffrey D. Rader, Judge

James R. Hickman, Jr., Sevierville, Tennessee, for the appellant, Juan A. R.

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

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

Agustine R. and Elizabeth R. (collectively "the Children") were to born to Elizabeth O. ("Mother") and Juan R. ("Father") in July 1999 and December 2000, respectively. The Children were born in Sevierville, Tennessee. Mother and Father (collectively "the Parents") were illegal immigrants. At some point, Mother returned to Mexico voluntarily, while Father was arrested and was subsequently deported to Mexico. The Children resided with friends and relatives until the Tennessee Department of Children's Services ("DCS") took custody of the Children in March 2010. The Children were adjudicated as dependent and neglected, based upon the inability of the Parents to legally return and care for the Children.

Despite the inability of the Parents to return to the United States, the record reflects that DCS developed approximately eight permanency plans from May 2010 until December 2013. These plans were ratified by the trial court. Father participated in the development of several of the permanency plans with the aid of an interpreter provided by DCS. He was also provided with written copies of the Criteria and Procedures for Termination of Parental Rights in Spanish. Pursuant to the plans, Father was required to complete an alcohol and drug assessment and follow all recommendations; attend domestic violence classes and submit proof of completion; provide proof of finances and report any changes in housing, employment, income, and transportation; write letters to the Children to establish a relationship; provide DCS with a current address; contact DCS if he returned to the United States; and comply with random drug screening if he returned to the United States. DCS initially sought to return the Children to the Parents or to place the Children with relatives; however, the Children were moved to an adoptive foster home when DCS was unable to find a suitable relative placement.

Father completed an alcohol and drug assessment and provided documentation to establish that the Mexican Consulate had found his home suitable for the Children. In 2012, DCS requested proof that Father's residence remained appropriate after he was involved in an altercation at his residence. At some point, Father ceased communications with DCS. DCS filed a petition to terminate Father's parental rights on April 13, 2012. The petition was later dismissed at the request of DCS.

Following Father's continued failure to comply with the majority of the requirements contained in the permanency plans and to maintain communication, DCS filed a second petition to terminate his parental rights to the Children on February 4, 2013.[2] DCS alleged that termination of Father's parental rights was supported by the statutory grounds of abandonment for failure to remit child support and substantial noncompliance with the permanency plans. Father was provided notice of the upcoming hearing on the termination petition by publication in Tennessee and California because DCS could not determine Father's current whereabouts. When DCS last spoke with Father, he was in California; however, they received subsequent information indicating that he may have moved back to Tennessee. In any event, Father did not appear at the hearing on May 14, 2014.

Elizabeth, who was 13 years old at the time of the hearing, testified that she had lived with her foster parents for approximately two and a half years. She enjoyed a "[p]retty good" relationship with her foster parents and hoped to be adopted by them. She claimed that her brother also wished to be adopted by their foster parents. She acknowledged that she had several siblings in Mexico and that she hoped to establish a relationship with them. She could not remember the last time she spoke with her biological father. She acknowledged that she refused his telephone call on one of her birthdays. She explained that she was afraid to speak with him because several people had told her about his treatment of her mother and because she had also witnessed behavior that made her uncomfortable.

Carol Davis testified that she had been assigned as the case manager for the Children since August 2010. She explained that the Children were taken into DCS custody when they were left without a legal guardian. She asserted that she attempted to assist Father in regaining custody and that she had even contracted for the services of an interpreter on approximately 14 occasions, 2 of which were prior to the filing of the termination petition at issue. She claimed that he even participated in some of the permanency planning meetings with the aid of an interpreter and that she mailed a translated version of the Criteria and Procedures for Termination of Parental Rights to him. She stated that she also completed a relative home study in California but that the residence was not approved as a placement. She acknowledged that she moved for dismissal of the original termination petition because she wanted to provide further assistance to Father given the unique nature of the case.

Ms. Davis testified that she advised Father of his duty to provide child support but that he never remitted any form of support for the Children. She stated that Father worked for Ruby Tuesday while he resided in the United States and that he was employed at a factory when he returned to Mexico. Father never claimed to suffer from a disability or stated that he was unable to find employment.

Ms. Davis testified that she communicated with the United States State Department in an effort to arrange visitation for the Children. She explained that her attempt to arrange visitation was unsuccessful because she would not have the ability to ensure the Children's safe return to the United States. She acknowledged that Father completed a home study through the Mexican Consulate and that his residence had been approved. She conceded that he also attended Alcoholic's Anonymous and submitted proof of a clean drug screen in June 2011. She stated that she did not return the Children because he had not completed the remainder of the permanency plan requirements and because she learned of another domestic violence incident that occurred in September 2012. She stated that Father denied the seriousness of the allegations.

Ms. Davis testified that she last spoke with Father in September 2013, when he advised her that he was residing in California with his sister and working on a freight truck. He expressed a desire to regain custody of the Children or have them placed with relatives, but he informed her that he would not return to court because he feared deportation. She advised him that the prospective relative placement would have to contact DCS. She asserted that she never received any further communication from Father or a relative that desired custody of the Children. She claimed that the Children currently resided in a loving, supportive foster home with parents that wished to adopt them.

Foster Mother testified that the Children had resided with her family for nearly three years and that she and her family hoped to adopt them.

Following the presentation of the above evidence, the trial court found that DCS had made reasonable efforts to assist Father and that the overall effort expended on Father's case was "unprecedented." The court terminated Father's parental rights on the statutory grounds of abandonment for failure to remit child support and substantial noncompliance with the permanency plans. The court further held that ...


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