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In re Faithw

Court of Appeals of Tennessee, Nashville

May 20, 2015

IN RE FAITHW.

Assigned on Briefs March 7, 2015

Appeal from the Juvenile Court for White County No. 3945 Sammie E. Benningfield, Jr., Judge

Kelsy Austin Miller, Cookeville, Tennessee, for the appellant, Sandra P. [1]

Herbert H. Slatery III, Attorney General and Reporter, Jason I. Coleman, Assistant Attorney General, and Leslie Curry, 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

Faith W., a seventeen-month-old child, was taken into protective custody by the Tennessee Department of Children's Services ("the Department") on July 13, 2012, after a referral that Sandra P. ("Mother") had been exposing the child to drugs. At the time of removal, Mother admitted that she had used meth the previous day and that the child was with her. The child's father was incarcerated at the time of removal. Lacking a less restrictive alternative, the child was placed in foster care and has remained with the same foster family since she's been in the Department's custody.[2]

Mother entered into a permanency plan in July 2012. Generally stated, the plan required Mother to address her substance abuse issues, obtain and maintain stable housing, have reliable transportation, obtain a legal means of income, complete a parenting assessment, complete a mental health assessment, and to pay child support as ordered by the State. The plan also listed several action steps requiring Mother to, inter alia, attend parenting classes, live drug-free and not associate with known drug abusers, obtain substance abuse counseling, follow the recommendations of counseling and treatment, and submit to random drug screens. A second plan was created in January 2013 with the same actions steps. In July 2013, a third plan was created with additional action steps requiring Mother to not incur any new legal charges, maintain a home free of illegal drug use, follow all recommendations from substance abuse and mental health counseling, and not use illegal drugs. A fourth plan was created in January 2014, after the Department filed its petition to terminate Mother's parental rights, with the goal of adoption.

The Department filed its petition to terminate the parental rights of both Mother and the child's father on December 27, 2013. The case went to trial on May 14, 2014. By order entered on June 3, 2014, the trial court terminated the parental rights of both parents. As for Mother, the court found three grounds for termination of her parental rights: abandonment by failure to support, 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. Mother appeals contending that the evidence does not clearly and convincingly establish the grounds upon which her rights were terminated or that termination of her rights was in the best interests of the child. 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 the statutory grounds for termination exists and if so whether the termination of parental rights is in the best interests of the children. Id. The trial court's conclusions of law are reviewed de novo with no presumption of correctness. In re Bernard T., 319 S.W.3d at 597.

Analysis

I. Grounds for Termination

The trial court terminated Mother's parental rights on three grounds: abandonment by failure to support, substantial non-compliance with the permanency plan, and persistence of conditions. With respect to the grounds of substantial non-compliance with the permanency plan and persistence of conditions, Mother essentially argues (1) that these grounds trigger a mandatory, "statutory duty" by the Department to make reasonable efforts to assist her in making it possible for the child to return home, and (2) that the Department has the burden of proving its reasonable efforts, by clear and convincing evidence, as an essential element of its termination case. Mother does not contend that she substantially completed the permanency plan requirements or that she has resolved the conditions that led to the child's removal into foster care. Instead, Mother contends that "the trial ...


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