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In re Kemauri H.

Court of Appeals of Tennessee, Nashville

March 26, 2015

IN RE KEMAURI H.

Assigned on Briefs December 5, 2014

Appeal from the Juvenile Court for Rutherford County No. TC2338 Donna Scott Davenport, Judge

Jerry W. Matthews, Woodbury, Tennessee, for the appellant, Lakeenta H. [1]

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

Frank G. Clement, Jr., P.J., M.S., delivered the opinion of the Court, in which Andy D. Bennett and Richard H. Dinkins, JJ., joined.

OPINION

FRANK G. CLEMENT, JR., JUDGE

Kemauri H., a two-year old child, was taken into protective custody by the Tennessee Department of Children's Services ("the Department") on November 16, 2012, after his sibling's death due to neglect and drug exposure. At the time of removal, Mother tested positive for benzodiazepines, cocaine, and marijuana, and she was temporarily staying with a friend because she did not have a home. Jason L. ("Father") was incarcerated at the time of removal.[2] Lacking a less restrictive alternative, the child was placed in foster care and has remained with the same foster parents for nearly the entire time he's been in the Department's custody.[3]

Mother was arrested for charges related to the death of the child's sibling on May 8, 2013; Mother was charged with felony murder, aggravated child abuse, and aggravated child endangerment. Prior to Mother's arrest, she entered into the first of three unsuccessful permanency plans.[4] The goals and requirements of the permanency plans were consistent throughout the pendency of the case. The plans contained dual goals of return to parent and adoption, and the requirements included, inter alia, that Mother would complete a clinical assessment with alcohol, drug, and parenting components; follow all assessment recommendations; participate in random drug screens within 72 hours of the request; produce proof of any prescriptions; attend weekly anonymous drug/alcohol meetings; be sober and pass drug screens at visitation; obtain a safe, suitable home; demonstrate the ability to competently care for the child; provide proof of a legal means of income; attend parenting classes; and resolve legal issues. Mother was incarcerated at the time she entered into the second and third permanency plan.

The Department filed its petition to terminate the parental rights of both Mother and Father on September 27, 2013. The case went to trial on April 22, 2014. Although Mother remained incarcerated at the time of trial, she attended the trial; however, she chose to take the Fifth Amendment as to all questions asked.[5] The trial court took a negative inference from Mother's refusal to testify. Father did not attend the trial. Father's attorney informed the court that he had been unable to contact Father since November 2012.

The evidence introduced at trial established that by September 2013, Mother had completed two of the fourteen requirements of the permanency plan: the clinical assessment and the parenting classes. While Mother completed the clinical assessment, she failed to follow the recommendations of the assessment. Moreover, during the relevant four months preceding her incarceration, Mother failed to sign a release for mental health; provide proof of attendance in anonymous drug/alcohol meetings; proof of employment and income; proof of obtaining a lease; and she failed to cooperate with the Department as she was unreachable for approximately one month. The evidence also established that, since the child's removal in November 2012 to the time of Mother's incarceration in May 2013, Mother continued to abuse drugs. Significantly, Mother failed to appear for all required drug screens, as required by the permanency plan; furthermore, the majority of the drug screens for which she did appear, she tested positive. Specifically, the Department made seventeen attempts to drug screen Mother, but Mother only participated in twelve; of those twelve, seven were positive, including five returning positive for cocaine. Mother last tested positive for cocaine on the day she was incarcerated. With respect to visitation, Mother could have participated in a minimum of eight visits, but some visits were cancelled due to Mother's positive drug screens. The evidence established that Mother did visit the child on five occasions during the relevant four months; however, four of the five visits were token because Mother was not engaged, she acted inappropriately and failed to parent during those visits.

By order entered on June 16, 2014, the trial court terminated the parental rights of both parents. As for Mother, the court found six grounds for termination of her parental rights: abandonment by failure to visit, abandonment by failure to support, abandonment by wanton disregard, abandonment by failure to provide a suitable home, substantial non-compliance with the permanency plan, and persistence of conditions. The trial court also found that the termination of Mother's parental rights was in the best interests of the child. This appeal by Mother followed. The child's father did not appeal the termination of his parental rights.

Standard of Review

To terminate parental rights, two things must be proved by clear and convincing evidence: (1) the existence of at least one of the statutory grounds for termination, and (2) that termination is in the best interest of the child. Tenn. Code Ann. § 36-1-113(c); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). "Clear and convincing evidence enables the fact-finder to form a firm belief or conviction regarding the truth of the facts, and eliminates any serious or substantial doubt about the correctness of these factual findings." In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010) (citing In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re Valentine, 79 S.W.3d at 546) (other citations omitted). When a trial court has made findings of fact, we review the findings de novo with a presumption of correctness under Tenn. R. App. P. 13(d). See In re Bernard T., 319 S.W.3d at 596; In re Angela E., 303 S.W.3d 240, 246 (Tenn. 2010). We next review the trial court's order de novo to determine whether the facts amount to clear and convincing evidence that one of ...


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