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In re Ayris R.

Court of Appeals of Tennessee, Knoxville

April 23, 2015

In re AYRIS R. [1]

Assigned on Briefs February 23, 2015

Appeal from the Juvenile Court for Washington County No. 14385 Hon. Robert G. Lincoln, Judge

Joseph O. McAfee, Greeneville, Tennessee, for the appellant, Jonathan L.

Herbert H. Slatery, III, Attorney General and Reporter; Andree S. Blumstein, Solicitor General; and Kathryn R. Baker and Alexander S. Rieger, Assistant Attorneys 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

Ayris R. ("the Child") was born to Amber R. ("Mother") and Jonathan L. ("Putative Father") in September 2013. Putative Father was incarcerated at the time of the Child's birth. The Child was born at home and then transported to Johnson City Medical Center, where it was discovered that she had been exposed in utero to Subutex, THC, and Cocaine. The Child, who was born with a cleft palate, had difficulty eating, and was diagnosed with Pierre Robin Syndrome, was placed in the neonatal intensive care unit. The Tennessee Department of Children's Services ("DCS") took custody of the Child following her release from the hospital in October 2013. She was later adjudicated as severely abused as a result of Mother's drug use during pregnancy. Mother and Putative Father (collectively "the Parents") later stipulated that the Child was dependent and neglected, as evidenced by Mother's drug use and Putative Father's incarceration.

The Parents were not married at the time of the Child's birth, and Putative Father's name was not listed on the birth certificate. He later took a DNA test, the results of which were never disclosed to DCS. Other than taking the DNA test, he took no further steps to establish his paternity of the Child. Once released in March 2014, DCS arranged visitation between the Child and Putative Father on a weekly basis.

DCS filed a petition to terminate Putative Father's parental rights to the Child on June 10, 2014.[2] DCS alleged that termination of his parental rights was warranted pursuant to Tennessee Code Annotated sections 36-1-117(c) and 36-1-113(g)(9) because he had failed to establish his paternity. A hearing on the petition was held in September 2014. Putative Father was present but did not testify.

The majority of the testimony presented at the hearing related to Mother's struggle with drug addiction. However, Katie Wilhoit, the DCS case manager assigned to the Child's case, testified that the Child was placed in a two-parent home with a stay-at-home foster father. She believed that the Child had bonded with the foster parents, who had addressed her unique medical needs.

Ms. Wilhoit testified that the Parents lived together but were not married. She recalled that Putative Father was not listed on the Child's birth certificate but that Mother identified him as the biological father. She stated that she searched the Putative Father Registry before filing the termination petition and did not find any claims for paternity of the Child. She related that Putative Father had not legitimated the Child or even filed a petition for paternity. She opined that he had not manifested willingness and an ability to take custody of the Child and that placing the Child with him would pose a substantial risk of harm to the Child's physical or psychological welfare. She conceded that his home was physically safe, that he completed a parenting assessment, and that he had passed four drug screens. However, she stated that he continued to abuse alcohol and that he lived with Mother, who continued to abuse drugs.

Ms. Wilhoit testified that Putative Father had not remitted child support, despite having access to money. She recalled that he only visited the Child on six occasions from March 19, 2014, until the hearing on September 29, 2014, despite her willingness to arrange visitation on a weekly basis. She acknowledged that he brought clothing, diapers, wipes, and toys for the Child when he visited her. She agreed that he was able to engage the Child in play and that he was attentive to her physical needs.

Ms. Wilhoit testified that Putative Father's parental rights to the Child's half-sister, Emma J., had been terminated in May 2014. The order terminating his parental rights reflected that Emma J. was adjudicated as dependent and neglected and that Putative Father abandoned the child by failing to visit, that he failed to substantially comply with the requirements of a permanency plan, that the ...


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