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In re Autumn L.

Court of Appeals of Tennessee, Knoxville

May 26, 2015

IN RE: AUTUMN L.

Assigned on Briefs April 30, 2015.

Appeal from the Juvenile Court for Claiborne County No. 2013JV1150 Robert M. Estep, Judge

Lindsey C. Cadle, Tazewell, Tennessee, for the appellant, Ashley L.

Thomas J. Tabor, Jr., Tazewell, Tennessee, for the appellant, Aaron B.

Herbert H. Slatery, III, Attorney General and Reporter, and, Jordan Scott, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services.

D. Michael Swiney, J., delivered the opinion of the court, in which John W. McClarty and Thomas R. Frierson, II, JJ., joined.

OPINION

D. MICHAEL SWINEY, JUDGE.

Background

The Child was born in November 2012. Mother spent the majority of her pregnancy in jail. Both Mother and Father have a history of criminal activity and drug abuse. In February 2013, the Child was removed from the parents' home based on alleged drug abuse by the parents. Permanency plans were developed and entered for the parents. Around this time, a great, great aunt of the Child filed a petition for custody. In October 2013, DCS filed a petition to terminate Mother's and Father's parental rights to the Child. In May 2014, this case was tried. Several witnesses testified, including Mother and Father. We will summarize the pertinent testimony.

Mother and Father testified to a string of poor choices on their part. Mother testified to multiple criminal charges such as public intoxication. Mother, who had sought treatment for drug abuse, failed to attend rehabilitation aftercare and thereafter relapsed on drugs. Mother's drug of choice was Opana. Mother stated that she had not focused on the Child before her incarceration because she was "strung out on drugs." Regarding housing, Mother and Father had lived with Mother's grandmother.

For his part, Father testified to an addiction to painkillers. Father had visited the Child only once throughout the case. Although Father testified to various issues which he claimed prevented him from visiting the Child, he was able to travel on occasion to a suboxone clinic in Johnson City. Mother also asserted various reasons for her sparse visits with the Child, but she as well managed to get to a suboxone clinic.

Neither parent had paid any child support. Mother worked at "Lazy Days" when not in jail, and earned enough money for her food, clothes, shoes and other items. Nevertheless, she paid no support. Father earned money with odd jobs when not in jail. As of trial, the Child lived with a pre-adoptive foster family. The Child was receiving treatment for her various health problems, including a lack of mobility in her limbs. The Child had bonded well with the foster family.

The trial concluded on May 16, 2014. The Juvenile Court issued a memorandum opinion on June 16, 2014. However, the Juvenile Court did not enter its final order until July 2, 2014. The Juvenile Court terminated both Mother's and Father's parental rights to the Child on the following grounds, identical for each parent: abandonment by incarcerated parent for failure to visit, failure to support, and wanton disregard; abandonment by failure to provide a suitable home; substantial noncompliance with permanency plans; and, persistent conditions. Under the standard of clear and convincing evidence, the Juvenile Court found and held in its detailed order as follows, inter alia:

The proof established that [the Child] . . . was born to the natural Mother, [Mother] and [Father], Father. The Child was initially removed from the parents on February 11, 2013, due to alleged drug abuse by the parents. [Mother] testified she had visited with the child on three or four occasions since the child had been placed into custody. Furthermore, the mother testified that she had been arrested seven (7) different times since the child was placed into custody. The mother visited the child on April 15, 2013; august 2, 2013; September 13, 2013/ Therefore, the Court finds that pursuant to T.C.A. § 36-1-102(1)(A)(iv), that the mother has been incarcerated during part of the four (4) months immediately preceding the institution of the termination proceeding and has willfully failed to the [sic] visit the child. The Court finds that the three (3) times the mother saw the child were "token visitation" as defined in T.C.A. § 36-1-102(1)(c). The Court finds that the mother has abandoned the child as defined in T.C.A. § 36-1-102.
[Father] testified that he had visited with the child on one (1) occasion since the child was placed into custody. Visitation was on August 2, 2013. Furthermore, [Father], has been arrested on February 15, 2013, on a Violation of Probation and remained in the jail until the end of May, 2013. Additionally, he was arrested July, 2013, for a Public Intoxication and on October 10, 2013, he pled to Resisting Arrest and was flattening his sentence. Therefore, the father had been incarcerated during part of the four (4) months, immediately preceding the institution of the termination proceeding and has willfully failed to visit as defined in T.C.A. § 36-1-102(1)(A)(iv). He has only exercised "token visitation" as defined in T.C.A. § 36-1-102(c). Therefore, the Court finds that the father has abandoned the child as defined in T.C.A. § 36-1-102(1)(A). Based on the foregoing termination of the parental rights, pursuant to T.C.A. § 36-1-113(g)(1), is granted based on abandonment by both parents.
Additionally, neither parent testified that they had provided any financial support for the child since the child was placed into custody. Therefore, the parental rights of bother [sic] parents are terminated pursuant to T.C.A. § 36-1-113(g)(1).
Furthermore, the Court finds that the continuous incarceration by the parents evidences abandonment as defined in T.C.A. § 36-1-102(1)(a)(iv), due to wanton disregard for the welfare of the child.
The parents testified that the home that the child would reside, if returned to the parents would be the home of [Mother's] Grandmother, being [Bernice M.]. Ho[w]ever, the parents have continued to have legal problems that have resulted in their incarceration making it impossible for the Department of Children's Services to use reasonable efforts to assist the parents in home studies and the establishment of a suitable home. They must be out of jail and living in a home for the Department of Children's Service's workers to observe them in that home to make a finding of whether or not it is suitable. Therefore, the actions of the parents have made it impossible to assist. Court finds that the parents have abandoned the child by failure to provide a suitable home, due to their incarceration as defined by T.C.A. § 36-1-102(1)(A)(ii).
The family Permanency Plan (Exhibit 5) was ratified on March 20, 2013. The responsibilities of the parents included the following:
1) The mother and father will be drug free.
2) The parents will have all legal matters resolved.
3) The parents will demonstrate they can effectively ...

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