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In re Roger T.

Court of Appeals of Tennessee, Jackson

April 27, 2015


Assigned on Briefs March 25, 2015

Appeal from the Juvenile Court for Decatur County No. 12JV81 Ricky L. Wood, Judge

Stephanie Rhiannon Cody, Lexington, Tennessee, for the appellant, R.C.B.

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.

Arnold B. Goldin, J., delivered the opinion of the Court, in which Brandon O. Gibson, J., and Kenny Armstrong, J., joined.



I. Background

In this appeal, we review the trial court's termination of Mother's parental rights. Mother's oldest child, R.C.T. (born 7/22/99), was fathered by R.D.T. Mother's second oldest child, K.S.R. (born 9/29/01), was fathered by J.S.R. J.S.R. died in 2009. Mother's youngest child, A.J.H.B. (born 7/5/06), was fathered by A.L.B.[1] Although the trial court terminated he parental rights of R.D.T. and A.L.B. in addition to those of Mother, only Mother appealed to this Court.

By her own admission, Mother has used drugs "[o]ff and on" since she was thirteen years of age. Her struggles with drug use have posed significant challenges for both her and her children. In 2007, the Department of Children's Services ("DCS") removed the minor children from Mother, in part, due to her drug use. Although Mother later regained custody of the children, she struggled to maintain sobriety. Indeed, at the time of trial in this case in August 2014, she was participating in a drug treatment program at a facility in Memphis.

The children entered the custody of DCS for a second time on June 5, 2012. DCS had received a report that the children did not have a guardian, and when an investigator for Child Protective Services looked into the matter, he discovered that the children were living in a camper belonging to one of Mother's paramours, D. H. ("Mr. H."). The investigator found that the camper did not have enough room for the children and that there was not enough food in the home. Mr. H., a convicted criminal and methamphetamine user per Mother's testimony, was not present at the time the investigator arrived. Mother was also not present at the camper, as she was incarcerated in the Henderson County Jail at the time.[2]When Mother was screened for drugs at the Henderson County Jail on June 6, 2012, she tested positive for amphetamines, methamphetamine, and opiates.

On June 7, 2012, DCS filed a petition in the trial court asking that the children be adjudicated dependent and neglected. The petition recounted the investigation conducted by Child Protective Services on June 5, 2012, and stated that DCS had received a report that the children had been subjected to drugs, physical abuse, and environmental neglect. In its prayer, DCS requested the trial court to enter an order placing temporary care of the children with the State. A protective custody order giving custody of the children to DCS was subsequently entered. On September 6, 2012, DCS amended its dependency and neglect petition to include allegations of severe abuse against Mother. The children were ultimately declared dependent and neglected by an order entered on June 2, 2014. The trial court's order, which also found A.J.H.B. to be a victim of severe child abuse, noted that it was a final order in accordance with Rule 36 of the Tennessee Rules of Juvenile Procedure.

After the filing of the dependency and neglect petition, several permanency plans were created. In part, these plans required Mother to: not associate with people who use drugs; only leave her children with people she trusts and knows do not use drugs; talk to the children about the harms drugs cause; schedule an intake assessment, and after completing it, follow its recommendations; submit to random drug screens; obtain safe and stable housing; work on her alcohol and drug issues; find employment; and meet the children's financial needs. The first permanency plan, dated July 16, 2012, was ratified by the trial court on October 15, 2012. The specific goal of the plan was to return the children to Mother. However, by the time the last permanency plan was created in June of 2014, the permanency goal had changed-over Mother's objection-to adoption of the minor children.[3] In addition to the permanency plans that were created, Mother signed the Criteria and Procedures for Termination of Parental Rights on several occasions. This form gave notice of the grounds pursuant to which Mother's parental rights could be terminated.

On November 26, 2013, DCS filed a petition to terminate the parental rights of Mother, R.D.T., and A.L.B. As grounds for terminating Mother's rights, the petition alleged as follows: (1) Mother abandoned the children by willfully failing to visit them and/or willfully failing to contribute to their support; (2) Mother abandoned the children by failing to establish a suitable home; (3) Mother had not substantially complied with the permanency plans; (4) the conditions that led to the removal of the children still existed and thus prevented their return; and (5) Mother committed severe child abuse against A.J.B.H. Mother filed a response to DCS's petition on July 7, 2014. A trial was held on August 18, 2014. The first witness to testify was Nicole Schleuning ("Ms. Schleuning"), a family service worker with DCS. Ms. Schleuning described her role with DCS as a foster care case manager. Specifically, she noted that she meets with children and their parents to work towards reunification. Ms. Schleuning testified that she began working on the case involving Mother and the children approximately two weeks after the children entered DCS's custody in June 2012. She indicated that the children had never exited DCS's custody since that time, and that the children had not had a trial visit with Mother since she was working on the case.

In addition to testifying to details of the permanency plans that were created, including Mother's responsibilities under them, Ms. Schleuning testified as to Mother's success in completing the rehabilitation and reunification goals that had been outlined. In pertinent part, Ms. Schleuning testified as to Mother's efforts at completing a long-term rehabilitation program.[4] Ms. Schleuning testified that Mother first participated in a treatment program at New Leaf, a facility in Cookeville, Tennessee. Although Ms. Schleuning indicated that the treatment program at New Leaf was scheduled to be a twenty-eight day program, she testified that Mother was discharged from the program after eleven days due to inappropriate behavior.[5] Mother's stay at New Leaf was not her only attempt to address her drug issues, and Ms. Schleuning testified that Mother later entered Pathways in Jackson, Tennessee, for five days in order to detox before starting a ninety-day treatment program at Memphis Recovery Center. Despite starting the program at Memphis Recovery Center following her detox in Jackson, Mother failed to complete the program due to more inappropriate conduct.[6]According to Ms. Schleuning, although Mother was given the option to start over in the program, Mother was not willing to do so and was discharged.[7]

Despite Mother's failure to complete these prior programs, Ms. Schleuning testified that Mother entered a treatment program in May 2014 at Grace House in Memphis.[8] Despite suggesting that there had been "some bumps in the road, " Ms. Schleuning testified that Mother was still participating in the program as of the date of trial. Ms. Schleuning testified that the program at Grace House was scheduled to last for six months.

Through her testimony, Ms. Schleuning described the various ways she had attempted to assist Mother achieve the steps outlined in the permanency plans. For example, Ms. Schleuning testified that she had entered several case service requests on behalf of Mother, provided transportation to Mother's rehabilitation programs, and taken the children to visit Mother on a number of occasions. Ms. Schleuning also testified as to her efforts in assisting the children. She testified that in addition to facilitating therapeutic supervised visitation between Mother and the children, she had ensured that the children's medical, dental, educational, and mental health needs were met.

Ms. Schleuning also testified as to Mother's success at remaining drug free. She indicated that DCS conducted several drug screens and that Mother had tested "positive at different times for different drugs." Ms. Schleuning described how Mother had tested positive for several drugs on June 6, 2012, and then tested positive again on August 30, 2012. According to Ms. Schleuning, Mother even confessed to being high during one of the occasions on which Ms. Schleuning transported Mother to rehabilitation. Moreover, out of the approximately twenty to thirty drug screens DCS administered since the children's removal in June of 2012, Ms. Schleuning estimated that Mother passed only one. Ms. Schleuning also testified to the various crimes Mother had been charged with subsequent to the children's removal in June 2012. These crimes included two charges for driving on a suspended license, one domestic assault charge, a failure to appear charge, a possession of drug paraphernalia charge, and a simple possession charge.

Regarding the impact of Mother's drug use on her visitation with the children, Ms. Schleuning testified that DCS allowed supervised visitation so long as Mother could provide a negative drug screen. This requirement, she noted, had not resulted in a lot of visits. Although Mother and the children frequently participated in supervised visitation in the months following June 2012, Ms. Schleuning stated that visitation was stopped in December 2012 due to Mother's admission that she was using morphine.[9] Ms. Schleuning further testified that, between December 2012 and December 2013, Mother probably visited the children only twice. She stated that one of these visits had been in the spring of 2013, when the children visited with Mother at Memphis Recovery Center. According to Ms. Schleuning, there was a six-month period where Mother was not in contact with her own attorney or DCS. We note that at the time DCS filed its termination petition, Mother's whereabouts were unknown.

Ms. Schleuning further testified that Mother exercised no visitation with the children from December 2013 to May 2014. She estimated that in the two years prior to trial, Mother probably spent less than seventy-five hours with the children. Following Mother's entry to the treatment program at Grace House in May 2014, however, Ms. Schleuning noted that Mother visited with the children on a couple of occasions. She testified that she personally observed one of Mother's visitations with the children and that it had gone "[v]ery well."

Ms. Schleuning testified that all three children had been placed in foster care with M.A. and D. A. ("Mr. & Mrs. A.") since June 2012, and she stated that she observed the children at Mr. & Mrs. A.'s home during her time on the case. In addition to stating that the home was safe and appropriate for the children, Ms. Schleuning testified that Mr. & Mrs. A. involved the children in a lot of extra-curricular activities. For example, she testified that the children had been active church participants and were involved in several sports. She further indicated that the children questioned why Mother had not done what she needed to do in order to regain custody.

Concerning the relationship between Mother and the children, Ms. Schleuning testified that, with the exception of one gift brought by Mr. H. on behalf of Mother in July 2012, none of the children received birthday gifts or cards from Mother since coming into custody of DCS. She did specifically note, however, that the children were bonding with Mother in the recent visits that had been allowed since Mother entered Grace House. She also testified that all three children wished to return to Mother. Although Ms. Schleuning further stated that she had seen a change in Mother since Mother's arrival at Grace House, she ultimately opined that it would be in the children's best interests for Mother's parental ...

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