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In re Wesley P.

Court of Appeals of Tennessee, Jackson

May 29, 2015

IN RE WESLEY P.

Session May 14, 2015.

Appeal from the Chancery Court for Weakley County No. 22470 W. Michael Maloan, Chancellor.

Carol S. Godwin, Martin, Tennessee, for the appellant, Stephanie C.P.

Beth Farmer-Belew, Paris, Tennessee, for the appellant, Kenneth P.[1]

Herbert H. Slatery, III, Attorney General and Reporter; and Jason I. Coleman, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services.

J. Steven Stafford, P.J., W.S., delivered the opinion of the Court, in which Arnold B. Goldin, J., and Kenny Armstrong, J., joined.

OPINION

J. STEVEN STAFFORD, JUDGE.

Background

Appellants/Respondents Stephanie C.P. ("Mother") and Kenneth P.[2] ("Father, " and together with Mother, "Parents") are the parents of one minor child, born in 2006. At the time of the child's birth, Parents were not married.[3] In 2011, Petitioner/Respondent State of Tennessee Department of Children's Services ("DCS") removed the child and his half-sister[4] from Parents because the children were residing in a structure where methamphetamine was being manufactured. When the child first came into DCS custody, the child and Parents resided in Weakley County. On October 4, 2011, the trial court entered an agreed order finding that the child was dependent and neglected and severely abused due to the manufacture of methamphetamine in the home. The children were placed with relatives, but Parents maintained supervised visitation. On May 22, 2012, the juvenile court entered an order restoring custody of both children to Parents. The order provided that it constituted a final disposition of the matter.

At some point in early 2013, DCS received a referral indicating that Parents were again manufacturing methamphetamine in their home. On February 14, 2013, a DCS caseworker, Kandi Sawyers, and an officer with the Carroll County Sherriff's Office, Joel Pate, arrived at Parents' home in Carroll County to investigate the allegations. Officer Pate found numerous items associated with the manufacture of methamphetamine. Ms. Sawyer subsequently administered a urine drug test on Mother, who tested positive for methamphetamines and amphetamines. Father was not present during the inspection of the home or the drug screening. Mother was arrested and taken into custody on February 14, 2013. Because Father was out of town, as discussed in detail infra, the child was temporarily placed in the custody of paternal grandmother. Father eventually moved in with paternal grandmother and the child. The parties participated in a child and family team meeting on February 19, 2013. At this meeting, Father submitted to a urine drug screen and tested negative for all substances. Both Parents agreed to participate in services with DCS, and the child was returned to Father, with Mother allowed only supervised visitation with the child.

Mother and the child participated in a hair follicle drug test in March 2013; both tested positive for methamphetamines. Mother subsequently entered into an inpatient drug rehabilitation facility on April 15, 2013. There is some dispute as to whether Father was required to participate in a hair follicle drug test; regardless, Father did not participate in such a test at this time. DCS eventually removed the child from the home at midnight on May 31, 2013. Parents were permitted to have supervised and therapeutic visitation with the child. Father was also not prohibited from attending the child's sporting events.

Father was later arrested in June 2013 on charges of child abuse for allowing the child to be exposed to methamphetamine. Father eventually pleaded no contest to the charge of reckless endangerment. Father was sentenced to eleven months, twenty-nine days of supervised probation. Mother pleaded guilty to attempted aggravated child neglect, promotion of methamphetamine, and misdemeanor theft[5] as a result of the February 14, 2013 home visit. Mother was sentenced to twelve months in jail and several years of supervised probation. As part of Mother's sentence, however, she agreed to undergo one year of inpatient drug rehabilitation in lieu of incarceration.

Juvenile Court Proceedings

On April 29, 2013, DCS filed a petition in the Weakley County Juvenile Court to transfer legal custody of the child to DCS. The petition alleged that while it remained in the child's best interest to live with his parents, Parents agreed to abide by a non-custodial permanency plan, which had been created at the February 19, 2013 meeting. The plan required that Mother complete an alcohol and drug assessment, that Mother submit to future drug screenings, that the family participate in Wolfe Counseling Services and follow all recommendations, that the child have a hair follicle drug screening, and that Parents would ensure that the child is appropriately administered his medication. Finally, the petition asked that Mother only be allowed supervised visitation with the child. Notably, the petition did not request that Father be required to submit to random drug screens. Approximately one month later, on May 31, 2013, DCS filed an amended petition alleging that Parents refused to comply with the agreed-upon plan.[6] Due to the alleged non-compliance, DCS asked that the child be removed from Parents' custody and that custody be awarded to DCS. On the same day, May 31, 2013, the Weakley County Juvenile Court entered an ex parte order of protection placing the child in DCS's custody. The juvenile court entered an order appointing Mother and Father counsel on July 9, 2013. On July 23, 2013, the juvenile court entered an order maintaining temporary custody of the child with DCS.

On September 5, 2013, Parents entered an agreed order moving the child to a different kinship foster home, the home of Father's brother and his wife. The order stated that "the parties are working toward reunification of the minor child and his parents." However, the order was not signed by counsel for DCS, nor did the order contain a certificate of service indicating that a copy of the order was sent to DCS. As such, on September 17, 2013, DCS filed a petition to vacate the September 5, 2013 order, asserting that DCS was not consulted prior to the entry of the agreed order. The juvenile court entered an order on November 19, 2013, maintaining the child in the kinship foster home and approving a June 30, 2013 permanency plan. According to the juvenile court's order, the plan's stated goal was "Exit Custody to Live with Relatives." The parties participated in further legal proceedings in the Weakley County Juvenile Court regarding the placement of the child. The child was subsequently removed from Father's brother's home and placed in a foster home.[7]Eventually, on March 11, 2014, the juvenile court ratified a new permanency plan that included the goal of adoption. Both Parents objected to the new plan. The trial court's order notes that this plan was developed on December 9, 2014. From the record, it appears that this was the most recent permanency plan ratified prior to the termination of Parents' parental rights.

Chancery Court Proceedings

While the above proceedings were taking place in the Weakley County Juvenile Court, DCS filed a petition to terminate Mother's and Father's rights to the child on July 19, 2013, in the Chancery Court of Weakley County. The petition alleged a single ground for termination: severe abuse. Parents, however, contend that they were not informed of DCS's intention to terminate their rights until months later, approximately around the time that the final permanency plan was ratified.

Father filed a response to the petition on February 6, 2014, denying the material allegations contained therein. On February 25, 2014, Mother filed her own response to the petition. In addition to denying the material allegations regarding severe abuse and the child's best interest, Mother denied that Weakley County was an appropriate venue. On February 28, 2014, Mother filed a motion to dismiss the petition on the basis of improper venue. No order was ever entered on this motion. Instead, a trial on the termination petition occurred on September 18, 2014.

Officer Pate, a member of the Carroll County Drug Task Force trained in recognizing the evidence of methamphetamine use and manufacture, testified about the investigation into Parents' home. When Officer Pate and Ms. Sawyers arrived, a man answered the door. The man was later revealed to be an unrelated friend of Parents. Both Ms. Sawyers and Officer Pate testified that they could hear discussion prior to the door opening. When they asked for Father, the man replied that he would get him. The man returned and indicated that Father must not be home. As this time, Officer Pate noticed that a back door to the home was ajar. Soon thereafter, Mother arrived home with the child and gave written consent for Officer Pate to search the home. Officer Pate testified that he found substantial evidence that methamphetamine manufacture was taking place at the home during his investigation, including a glass pipe used for smoking methamphetamine, an empty bottle of sulfuric acid, and fifteen empty twenty-ounce bottles, typically used in the "shake-and-bake" method of methamphetamine manufacture. Officer Pate also testified that he found two methamphetamine labs on the property, and various other items that were typically used to manufacture or use methamphetamine.

DCS caseworker Ms. Sawyers also testified. Ms. Sawyers testified that, after receiving a referral that Parents were exposing their children to illegal drugs, she went to Parents' home with Officer Pate to investigate. After Mother arrived at the home, she agreed to submit to a urine drug screening. According to Ms. Sawyers, Mother's drug screening revealed that she had used methamphetamine. Ms. Sawyers testified that Mother admitted to having used methamphetamine four days prior to the drug test. Ms. Sawyers also testified that she later administered a hair follicle test to Mother and the child in March 2013, both of whom tested positive for methamphetamine. Ms. Sawyers further testified that she informed Father that he too was required to submit to a hair follicle test, but that Father avoided being tested during her time on the case. Ms. Sawyers testified that, after the child was returned to Father, Father refused to keep in contact with DCS or to update DCS as to the child's whereabouts even though Mother and Father agreed to participate in non-custodial services with DCS. Ms. Sawyers testified that she eventually was required to consult law enforcement to find Father. According to Ms. Sawyers, Father's failure to keep in contact with DCS led to the filing of the petition for custody in the Weakley County Juvenile Court and the petition to terminate Parents' parental rights in the Weakley County Chancery Court. In addition, Ms. Sawyers explained that Father's refusal to maintain contact with DCS was the catalyst for the midnight removal of the child on May 31, 2013. Ms. Sawyers admitted, however, that the child was always in school during this time.

Mother testified that she first began using drugs, mostly marijuana, in 2004. After that time, Mother was sober for six years before relapsing in 2011. Mother admitted that she used methamphetamine in the days leading up to February 14, 2013. Mother contended, however, that she never used methamphetamine in the parties' home or around the child. Further, while Mother admitted that she and Father had engaged in the manufacture of methamphetamine in 2011, [8] prior the child's first removal, Mother denied that the parties were engaged in methamphetamine manufacture in February 2013. However, Mother stated that Father's prior method of methamphetamine manufacture employed the "shake-and-bake" method, which required the use of twenty-ounce bottles. Mother further testified that the child must have been exposed to methamphetamine due to a couch that the child slept on nightly, at a friend's house, or through his ADHD medication.

Mother testified that although she had previously attended an in-patient drug rehabilitation center in 2011, she left the center without the tools to allow her to avoid drug use. Accordingly, Mother relapsed into drug abuse approximately eight months after entering that program. In contrast, Mother testified that she would soon complete one-year court-ordered stay in a drug rehabilitation center, where she learned the appropriate coping mechanisms to remain drug-free. There was no dispute that Mother was not using any drugs at the time of trial and that she had met all requirements with regard to her plea agreement and drug rehabilitation program. At the time of trial, Mother was working at a Jackson, Tennessee, area restaurant and also helping others with addiction problems at Pathways, a drug rehabilitation center. Mother testified that, although she was not allowed to have children where she currently lived, she would graduate from her current program in November 2014. At that time, Mother had options that would allow her to parent her child full-time.

A licensed clinical social worker at Pathways, Tajauna Miller, testified that she works closely with Mother at Pathways. Although Ms. Miller is not Mother's counselor, Ms. Miller testified that she works alongside Mother with other drug users and that she is familiar with Mother's efforts to remain drug-free. Ms. Miller testified that those who participate in a program like the one followed by Mother have high chances of remaining drug-free. Both Mother and Ms. Miller acknowledged, however, that there was no guarantee that Mother would remain drug-free.

Mother further testified that she participated in all therapeutic visitations with the child that were offered by DCS. In addition, when allowed by her drug rehabilitation program, she attended any visitation or sporting events that she was able. Mother testified that she and the child have a close bond and that the child often inquired as to whether he could return home. All DCS workers and counselors that testified supported Mother's testimony that she participated in all allowable visitation, that the visitation was healthy for the child, that Mother appropriately parented the child during the visitation, and that the child exhibited a close bond with Mother.

Finally, Mother admitted that in addition the charges related to her drug use and misdemeanor theft in February 2013, she also pleaded guilty to burglary and felony theft in November 2013. According to documents in the record, this offense occurred on July 13, 2013. Mother admitted that she committed these crimes. Mother agreed to serve a total of four years of supervised probation for these crimes. Father was later convicted of burglary and theft charges arising from the same incident. Both Mother and Father maintained that Father took no part in the crimes, but was merely convicted because Mother was driving Father's car. Father's appeal of his conviction was pending at the time of trial. Mother remains on probation for these charges. It is unclear from the record whether Father was sentenced to any jail time as a result of these convictions.

Father likewise denied that the parties were engaged in the manufacture of methamphetamine in February 2013. Father admitted that, while he engaged in manufacturing methamphetamine in 2011, he did not abuse the drug at that time or at any time prior to the removal of the child. Instead, he testified that he only used marijuana at that time. Father further testified that he was unaware that Mother was abusing drugs in February 2013. Father also indicated his belief that the child's positive methamphetamine test was the result of sleeping on a couch that had previously been located in a known methamphetamine lab.

Father testified that, on February 14, 2013, he was in Kentucky performing a job. Father testified that he was unable to return immediately upon learning of Mother's arrest because he was required to complete the job. Father further testified that he saw no reason to return to Carroll County and forego his pay, as the child was initially placed with paternal grandmother.

Father also denied that DCS ever required him to undergo a hair follicle drug screening. According to Father, after he passed his initial urine drug screening, DCS either did not require a hair follicle test or refused to pay for one to be administered. Because DCS would not pay for the hair follicle test, Father testified that he was under the impression that one was not required. Father did submit to a hair follicle test approximately three weeks prior to trial, which was positive for ...


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