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In re Brittany M. C.

Court of Appeals of Tennessee, Knoxville

March 24, 2015

In re BRITTANY M. C.

Assigned on Briefs January 16, 2015[1]

Appeal from the Juvenile Court for Sullivan County (Kingsport) No. J39903 Hon. Raymond C. Conkin, Jr., Judge

Daniel J. Cantwell, Kingsport, Tennessee, for the appellant, Mimi L. B.

Herbert Slatery, Attorney General and Reporter, and Jason I. Coleman, 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

Brittany M. C. ("the Child") was born to Mimi L. B. ("Mother") and Michael D. C. ("Father") in April 2002. At some point, the Tennessee Department of Children's Services ("DCS") removed the Child from Mother's care. Father maintained legal custody of the Child, while Mother was limited to supervised visitation. Unbeknownst to DCS, Mother lived with Father and the Child for several years until March 28, 2013, when Father committed suicide. The Child was removed several days later when Mother tested positive for Benzodiazepines, Oxycodone, opiates, and marijuana. The Child was placed in foster care. Since that time, Mother passed a drug test. However, the Child was adjudicated as dependent and neglected on June 12, 2013. Mother maintained visitation with the Child until July 16, 2013, after which she moved to Indiana to live with relatives.

DCS developed two permanency plans for Mother. These plans, dated April 22, 2013, and September 23, 2013, were ratified by the trial court. Pursuant to the plans, Mother was required, in pertinent part, to complete an alcohol and drug assessment and follow all recommendations, complete a parenting assessment and follow all recommendations, obtain and maintain suitable housing and legal income, sign a release allowing DCS to monitor her compliance with probation, follow rules of probation and refrain from incurring additional charges, dissociate from those with alcohol, drug, or criminal issues, submit to and pass random drug screens and pill counts of prescribed medication, provide DCS with a list of current medical providers and notify DCS of visits with said providers, advise medical providers of her history of addiction, and notify DCS prior to filling non-emergency prescriptions.

On December 13, 2013, DCS filed a petition to terminate Mother's parental rights. DCS alleged termination on the statutory grounds of abandonment for failure to visit, failure to provide support, and failure to provide a suitable home; substantial noncompliance with the permanency plans; and the persistence of conditions which led to removal. DCS also alleged that termination of Mother's parental rights was in the best interest of the Child. Mother finally returned to Sullivan County in January 2014.

A hearing was held over the course of two days in April and June 2014. Mother testified that she had recently returned to Tennessee from Indiana, where she had been living with relatives for several months. She explained that she left Tennessee in July because she was forced to leave Father's residence after he committed suicide. She stated that she did not have any family support in Tennessee or a place to live. She admitted that she violated the conditions of her probation for misdemeanor theft by leaving Tennessee and that she also failed to inform DCS of her move. She insisted that she maintained contact with DCS and the Child to the best of her ability. She asserted that she was "just having a difficult time" after discovering Father's dead body and that she "needed the support of [her] family."

Mother admitted that she had not maintained employment since 2007. She stated that despite her continued unemployment, she was able to support herself financially because she received benefits and disability income from the Social Security Administration. She explained that prior to Father's passing, she spent most of her time with Father caring for the Child. She acknowledged that she frequently spent time alone with the Child, despite the fact that she had only been awarded supervised visitation. She asserted that Father asked for her assistance and believed that she was not a danger to the Child.

Mother acknowledged that she participated in the creation of the initial permanency plan for the Child and that the court advised her of her responsibility to visit and support the Child. She conceded that she had not visited the Child or remitted child support while she lived in Indiana from July 2013 until January 2014. She claimed to have called the Child on several occasions and that when she returned, she frequently brought food and gifts for the Child when she visited. She asserted that she was never specifically tasked with remitting child support and that she contacted the child support office in January 2014 and was advised that her records did not indicate a support obligation.

Mother acknowledged that she really did not address the concerns in the permanency plans, e.g., parenting, drug addiction, and housing, until she returned in January 2014, after the termination petition had been filed. She testified that she completed her parenting assessment prior to moving to Indiana but that DCS failed to contact her to review the recommendations. She stated that she recently began working with Frontier Health to address parenting issues. Relative to drug addiction, she conceded that she failed a drug test in March 2014. She stated that she completed her alcohol and drug assessment in April 2014 and had received the recommendations from the assessment and a list of meetings. She asserted that she no longer associated with those who had drug issues. She stated that she maintained regular appointments with a therapist to address her mental health issues concerning Father's suicide. Relative to housing, she testified that she currently lived with a friend and occasionally stayed with others. She asserted that she found and applied for an apartment when she returned to Tennessee. She stated that her application could not be approved until she submitted her birth certificate, which she had not yet found.

Mother asserted that her failure to substantially complete the requirements in the permanency plans was largely a result of DCS's failure to assist her. She felt like she was left to assist herself, despite the fact that DCS had offered to assist her with housing, alcohol and drug treatment, and addressing the concerns related to parenting. She explained that she did not want to receive treatment from Frontier Health and that DCS had merely offered a list of housing resources in areas that she did not want to live. She claimed that despite the lack of assistance, she believed that she could be ready to care for the Child very soon. She asserted that she and the Child enjoyed a "good" and "very loving relationship." She enjoyed her visits with the Child and missed spending time with the Child.

Mother testified that the Child suffered from an anxiety disorder, obsessive compulsive disorder, and had been diagnosed as autistic. She related that in caring for the Child, she simply tried to calm her down by talking or doing things with her. She conceded that caring for a child like hers could be pretty stressful. She asserted that despite the stress, she had succeeded in obtaining a diagnosis for the Child and had secured some resources to assist in her growth and development prior to DCS's involvement. She stated that the Child was initially removed from her care because the Child was acting out at school.

Travis Sherffey testified that he was the case manager assigned to the Child from April 2013 until January 2014. He related that the Child was removed following Father's suicide because Mother tested positive for drugs and was homeless. He claimed that there were no other relatives at that time that could take the Child. He related that after the Child came into custody in April 2013, Mother participated in the creation of a permanency plan, which specifically directed her to contact the child support office. He also advised her concerning the Criteria and Procedures for Termination of Parental Rights.

Mr. Sherffey stated that Mother maintained contact with him until June 2013 and that her last supervised visitation with the Child through Frontier Health was on July 16, 2013. He related that Mother simply did not appear for the next scheduled visitation in August. He attempted to contact her, but she hung up on him after he identified himself. He advised the foster parents to cease communication with Mother until she contacted DCS. He related that Mother finally contacted him in November 2013. Thereafter, she participated in a foster care review board meeting by telephone, advised him that she would return in a few weeks, and identified her sister as a possible placement for the Child. He stated that Mother's sister was ultimately denied as a placement and that Mother returned to Tennessee in January 2014, after the termination petition had been filed.

Mr. Sherffey testified that Mother had sporadic telephone contact with the Child but did not visit the Child or remit child support during the four months preceding the filing of the termination petition. He related that prior to Mother's disappearance, he provided her with a list of housing options and offered to assist her by filling out paperwork, by exploring community resources to obtain financial assistance, or by making housing deposits, if necessary. He related that he was only able to maintain sporadic telephone contact from April until June 2013 because Mother refused to tell him where she resided. He admitted that Mother did submit to and pass a random drug screen in June 2013. He claimed that Mother never told him that she did not want treatment from Frontier Health and that he could have arranged for treatment through other providers if she had informed him of her preference.

Mr. Sherffey testified that Mother signed a release to allow him to speak with her probation officer but that she never provided him with a list of her prescription medication, medical providers, or pharmacies. He stated that she also did not notify him when she obtained new prescriptions or attended new medical appointments. He conceded that she completed the parenting assessment in May 2013 but asserted that he was unable to timely review the recommendations from the assessment before she disappeared. He related that he finally discussed the recommendations with her in December 2013. He recalled that the recommendations, in pertinent part, included completing an alcohol and drug assessment; addressing her mental health issues; and receiving intensive parenting education to address appropriate developmental expectations, the importance of providing a nurturing and supportive environment for the Child, counseling, parent/child interaction therapy, and the need for community support. He stated that he had no knowledge regarding whether she complied with the recommendations because her case was transferred in January 2014.

Mr. Sherffey testified that the conditions which led to removal still persisted at the time of the filing of the termination petition as evidenced by Mother's lack of contact with the Child, her violation of probation, her lack of residence, and her refusal to address her alcohol and drug issues. He related that Mother had not demonstrated that she could provide a suitable home for the Child. He opined that Mother was progressing with the help of DCS until she left Tennessee and ceased communication.

Mr. Sherffey testified that he had visited the Child's foster home. He related that there were issues in the home related to the Child's unique needs but that the Child had slowly adjusted and obtained stability. He believed that removing the Child from the home would be detrimental to the Child, who expressed a desire to remain in her foster home. He stated that the foster parents had recently expressed a desire to adopt the Child.

Rebecca Campbell testified that she was assigned to the Child's case from January 2014 until May 2014. She stated that Mother had still not disclosed an address. She believed that the most important requirements in the permanency plan were to address Mother's mental health and alcohol and drug issues. She acknowledged that Mother had completed her alcohol and drug assessment, her parenting assessment, and a mental health evaluation. She stated that she never received proof that Mother was attending and participating in therapy and that Mother did not complete the alcohol and drug assessment until after the termination petition had been filed. She recalled administering a drug test in June 2013 that was negative, another in March 2014 that revealed positive results for marijuana, Subutex, and Oxycodone, and a third in April 2014 that was negative. She claimed that Mother never submitted a prescription to explain the positive results. She asserted that Mother had also not received drug treatment.

Ms. Campbell testified that Mother failed to submit proof of income. She asserted that she advised Mother concerning her responsibility to remit child support and the consequences for failure to remit child support. She recalled that Mother expressed a desire to find employment but that Mother never applied for a job or asked for assistance in finding employment. She acknowledged that Mother brought food for the Child during visitation.

Brenda Greer testified that she was assigned to the Child's case in May 2014. She stated that she did not have a valid address for Mother and that she had attempted to contact Mother to no avail until Mother contacted her on the morning of the hearing. She stated that she was currently attempting to schedule intensive outpatient alcohol and drug treatment for Mother. She recalled that Mother had not attended the last visitation with the Child because Mother was sick.

Stacy Guinn testified that she was employed as a case manager for Frontier Health. She was assigned to the Child's case in April 2013 and since that time, had supervised the Child's visits with Mother and worked with the foster parents. She also worked with the Child on an individual basis each week. She recalled that Mother did not visit the Child from July 2013 until January 2014. She explained that Mother's absence had a "huge impact" on the Child because of the Child's special needs. She acknowledged that Mother maintained telephone contact with the Child from November 2013 but that the Child expressed anxiety and confusion during the conversations.

Ms. Guinn testified that the Child had improved, largely as a result of her environment in the foster home and at school. She believed that the Child was doing well in the foster home and was receiving stability. She claimed that Mother had difficulty applying a set schedule in a two-hour visit and that Mother could not recall skills she had learned minutes prior to their needed implementation. She did not believe that Mother was able to parent the Child. She related that Mother needed to obtain stable housing and income and to learn how to apply the learned parenting skills before the Child could be returned to Mother's care.

Denise Johnson testified that she was employed by Kingsport City Schools as a Special Education Teacher. She related that she taught the Child during the 2013-2014 school year. She claimed that her curriculum focused on teaching functional academics, which would allow special needs children to grow into a functioning adult. She believed that the Child was capable of achieving self-sufficiency as a functioning adult. She related that parental involvement was very important for special needs children like the Child because the children needed to implement the skills learned in the classroom. She recalled that Mother was present for each of the Child's individual education program meetings and that the foster parents were very involved in the Child's day-to-day education. She asserted that the Child needed constant supervision and had consistently improved as a result of a very scheduled, project-oriented curriculum. She recalled that the Child expressed a desire to remain in the foster home.

Ms. Campbell stated that the Child currently received therapy and attended weekly appointments with a behavioralist. She related that the child was "doing wonderful" in the foster home and seemed "very happy" and "very comfortable there." She stated that the Child had an established routine and that the foster parents were providing for the Child's needs. In contrast, she observed one visitation between ...


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