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In re Malaki E.

Court of Appeals of Tennessee, Nashville

March 23, 2015

IN RE MALAKI E.

Assigned on Briefs November 12, 2014

Appeal from the Juvenile Court for Montgomery County No. TPCV133571 Kenneth R. Goble, Judge.

Elizabeth D. Rankin, Clarksville, Tennessee, for the appellant, Andrea E.

Herbert H. Slatery III, Attorney General and Reporter, and Kathryn A. Baker, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services.

W. Neal McBrayer, J., delivered the opinion of the Court, in which Frank G. Clement, Jr., P.J., M.S., and Andy D. Bennett, J., joined.

OPINION

W. NEAL McBRAYER, JUDGE.

I. Factual and Procedural Background

Malaki E.[1] was born out of wedlock to Andrea E. ("Mother") in August 2012. On December 16, 2012, law enforcement officials found Mother "passed out and unresponsive" in a public restroom. Mother had difficulty speaking and standing up. She could not tell responders what type of medication she was taking. At the time, Mother had Malaki and an older child[2] in her care. Malaki was immediately placed in the State's protective custody. Mother was transported to the hospital and did not regain consciousness until the following day. On December 17, 2012, Mother was arrested for traffic offenses as well as child abuse and neglect.

This incident generated a referral to the Tennessee Department of Children's Services ("Department" or "DCS") for lack of supervision and drug-exposed child. The Department developed an initial permanency plan, with Mother's participation, dated January 11, 2013, with the concurrent goals of returning Malaki to Mother and placing Malaki with a relative. The permanency plan imposed several requirements on Mother: (1) complete an alcohol and drug assessment by mid-February 2013 and follow all recommendations; (2) sign a release of information to the Department by mid-February; (3) submit to random drug screens; (4) participate in all meetings regarding Malaki's permanency; (5) notify the Department upon locating acceptable housing; (6) identify legal means of income and provide documentation to the Department; and (7) pay child support upon order of the court, and until such time, provide for Malaki's basic needs. In conjunction with the creation of the plan, Mother received notice that her parental rights could be terminated if she failed to comply with the plan's requirements.

According to the Department, Mother's whereabouts were unknown after January 11, 2013, when she signed the initial permanency plan, until sometime in April or May 2013. The DCS family service worker claimed that she was able to re-establish contact with Mother only after she was arrested and released from jail in May 2013. The court presiding over her criminal case offered Mother additional jail time or the opportunity to participate in a residential recovery program. Mother choose the later, enrolling in a program at A Friend of Bill's Recovery House. She resided there from mid-May 2013 to at least mid-October 2013. Meanwhile, following a hearing on April 18, 2013, Malaki was adjudicated dependent and neglected.

The Department claims the only information it received regarding Mother's recovery program were short, monthly progress reports from the recovery house. The progress reports, issued May through October, each stated in relevant part:

[Mother] is maintaining employment and meeting all her financial responsibilities at this time. She is following all rules and regulations and attending all required meetings. [Mother] works closely with her sponsor in the program and continues to be very motivated in her recovery. If there is any change in her status, we will notify you immediately.

In October, the progress report also included the following: "As well, [Mother] has been voted in as a house monitor and has stepped up her responsibilities in the house. She is a positive influence to the other ladies in the house as well."

Each standard progress report also included a short summary of the recovery house program. The report stated that each resident "MUST procure and maintain full time employment, sponsorship, and attend daily A.A. and/or N.A. meetings . . . [and] MUST pay fees weekly and assume responsibilities in the home where he lives." The report concluded that the program required at least a six month commitment and, if residents failed to meet the requirements, they would be released from the program.

According to DCS, Mother attended six-hour visits with Malaki every two weeks from May 17, 2013, to September 17, 2013, while she lived at the recovery house. On one occasion in September 2013, Mother was responsible for providing food for Malaki during a six-hour visit. When Mother was forty-five minutes late, the Department cancelled the visit because the child was hungry.

On September 17, 2013, the Department filed a petition to terminate Mother's parental rights. The Department alleged four statutory grounds for termination: (1) abandonment for failure to support; (2) abandonment for failure to provide a suitable home; (3) substantial noncompliance with the permanency plan; and (4) persistent conditions.

There is little in the record regarding Mother's contact with Malaki or DCS from September 2013 to December 2013. A March 18, 2014 court report states that the permanency plan was amended on December 27, 2013, to add adoption as an alternative goal, rather than placing Malaki with a relative. This plan required Mother to complete the following tasks: (1) undergo complete psychological evaluation and follow all recommendations; (2) submit to random drug screens and produce prescription medications for pill count upon request; (3) maintain legal means of income; (4) develop formal and informal supports; and (5) attend therapy twice weekly and participate as a family in Al-Anon.

Mother was present for the Department meeting on December 27, 2013, and she signed the amended permanency plan.[3] However, the Department alleges it again lost contact with Mother after her last visit with Malaki on January 13, 2014. On that day, Mother tested positive for opiates and oxycodone in a random drug screen.

The juvenile court conducted a trial on the petition to terminate Mother's parental rights on March 27, 2014. Mother was not present for the hearing. Only two individuals testified: a DCS family service worker and Malaki's foster parent.

On June 5, 2014, the juvenile court entered an order terminating Mother's parental rights. The court determined that the Department had failed to prove Mother's substantial noncompliance with the permanency plan by clear and convincing evidence but that grounds for termination existed under the three other statutory grounds alleged in the petition. Regarding abandonment for failure to support, the juvenile court found that:

[For the] four months preceding the filing of this petition . . . [Mother] made no payments at all, provided no support whatsoever; whether it be food, clothing, presents, anything of that nature to support the child while he was out of mother's custody. [Mother] was aware of her obligation to support her child, knew that it was a ground to terminate her parental rights and still willfully failed to support her child.

Similarly, regarding abandonment for failure to provide a suitable home, the court found by clear and convincing evidence that the Department had made reasonable efforts to assist Mother in establishing a suitable home but Mother had not made reasonable efforts toward that goal. The court also found that Mother had demonstrated a lack of concern for Malaki to such a degree that it appeared unlikely she would be able to provide a suitable home for him at an early date. The court stated:

[Mother] has not proven that she has made reasonable efforts to properly care for the child and provide a safe, stable home. [Mother] never made a suitable home available for inspection by DCS to ascertain [if] the home was safe for the child. In addition, [Mother] failed to avail herself of the services coordinated by DCS to ensure that if the child returned home, he was not subjected to the same abuse that initially led to Malaki's placement in foster care.

The court further noted that, although Mother was in a recovery program from May to October of 2013, her failure to provide a suitable home during that period was willful because her placement in the program resulted from "actions taken by her due to criminal activity."

Regarding the persistent conditions ground for termination, the court found:

The conditions that led to removal still persist and/or other conditions exist in the home that, in all reasonable probability, would lead to further abuse or neglect. [Mother] has not fully addressed her substance abuse problem and has not allowed DCS to ascertain whether or not she is drug free. [Mother] has not addressed her parenting issues nor allowed DCS to ascertain whether she can properly supervise her child. Testimony was that [Mother] has not completed a clinical assessment or attended any parenting classes. Testimony presented was that [Mother] has failed to comply with random drug screens as requested by DCS, nor has she shown any proof as to treatment for Alcohol or Drugs. [Mother] only provided DCS with a letter from Bill's House of Recovery stating that she was a resident there.
. . . [T]here is little chance that the conditions which led to the child entering custody will be remedied soon so that the child can be returned safely to the home. . . . The Court finds most notable that [Mother] did not even make the effort to appear for the hearing in this matter. In addition, she made no effort whatsoever to make her home available for inspection, or complete the classes DCS coordinated on various occasions for her.

The court also determined by clear and convincing evidence that it was in Malaki's best interest for Mother's parental rights to be terminated. The court found that Mother had not "made any adjustment of circumstances, conduct, or conditions as to make it safe and in the child's best interest to return to her care." The court stated:

[Mother's] current circumstances are entirely unverifiable at this time. It is unknown whether her home is safe and appropriate for the child to reside in and she has not addressed the concerns that led to Malaki's placement in foster care by not submitting to random drug screens, not completing the recommendations of her assessments or not completing assessments at all. Most troubling is [Mother's] failure to appear to defend against the petition to terminate her parental rights and assist her counsel in providing information to the Court that would allow the Court to ascertain if a change of circumstances has occurred.

The court also found that Mother's failure to visit Malaki and make her home safe for him showed little concern for the child's well being. Finally, the court found that Malaki would be negatively affected by removal from his foster placement, where he is "well loved and cared for."

On June 18, 2014, Mother timely appealed the juvenile court's order terminating her parental rights.

II. Analysis

Mother submits several issues on appeal for our review: (1) whether clear and convincing evidence supports the trial court's decision to terminate parental rights on the grounds of abandonment for failure to pay child support, abandonment for failure to provide suitable housing, and persistence of conditions; (2) whether clear and convincing evidence supports the trial court's determination that termination of parental rights was in the best interest of the child; (3) whether DCS provided improper notice of an amendment to the permanency plan; (4) whether the trial court improperly considered the DCS caseworker's contradictory testimony; and (5) whether any one of six alleged errors of the court constitute grounds for reversal. All but two of the six so-called errors of the trial court ...


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