Assigned on Briefs February 9, 2015
Appeal from the Juvenile Court for Dickson County No. 02-14-009-CC A. Andrew Jackson, Judge
Jennifer L. Honeycutt, Nashville, Tennessee, for the appellant, Amanda L.
Steven S. Hooper, Waverly, Tennessee, for the appellant, Mark S.
Herbert H. Slatery III, Attorney General and Reporter, and Kathryn A. Baker, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services.
W. Neal McBrayer, J., delivered the opinion of the Court, in which Frank G. Clement, Jr., P.J., M.S., and Andy D. Bennett, J., joined.
W. NEAL McBRAYER, JUDGE
I. Factual and Procedural Background
Amanda L. ("Mother") has five children. Three children were born out of wedlock to Mother and Joshua P.: Bonnie L., Emily P., and Jacob P.  Two children were born out of wedlock to Mother and Mark S. ("Father"): Markus S. and Makayla L. This appeal concerns Mother's parental rights to her five children and Father's parental rights to Markus and Makayla.
In November 2011, the Department of Children's Services ("DCS") removed the children from Mother's and Father's home because both parents were abusing alcohol and drugs and had engaged in domestic violence. All five children were placed into State custody. The Juvenile Court of Dickson County adjudicated the children dependent and neglected on June 20, 2012.
Several permanency plans were created for Mother, Father, and the children. Mother was present for the creation of the first permanency plan in November 2011. She signed the plan and agreed that she understood the criteria and procedures for the termination of parental rights. Father was not present for the creation of the plan, but it was later explained to him. A second permanency plan was developed on January 15, 2012. In June 2012, another permanency plan was created. Mother did not sign that plan and testified that she "had no memory" of the plan. Father stated that he refused to sign the June 2012 plan because he did not want to "give [his] kids away." On October 10, 2012, a fourth permanency plan was created. Despite being present, Mother refused to sign the plan.
In November 2013, Father's visitation with Markus and Makayla was "suspended until he [could] show a pattern of clear drug screens." In January 2014, another permanency plan was created, which Mother signed. At some point, the children's therapists recommended that Mother no longer have visitation with the children. Apparently, Mother's visitation with the children had ended by February 2014. In March 2014, a final permanency plan was developed.
Together, the permanency plans outlined many responsibilities for Mother and Father regarding visitation with the children, substance abuse, parenting, and anger management, among other topics. Regarding visitation, the permanency plans made the parents responsible for visiting their children "on a consistent basis." In addition, the plans required the parents to: (1) notify the department within 24 hours if the visit needed to be rescheduled; (2) demonstrate appropriate parenting during visitation; (3) submit to random drug screens prior to visitation; and (4) provide transportation for themselves to and from visitation.
The permanency plans also included specific responsibilities for each parent. Father was required to: (1) demonstrate the skills learned from anger management and domestic violence classes; (2) complete a home study with DCS; (3) provide a copy of his lease to DCS; (4) have a "safe, stable living environment suitable for young children"; (5) ensure that anyone living with him agreed to a background check, drug screen, and to cooperate with DCS; (6) notify DCS within 24 hours of any contact information change; (7) sign all releases of information to DCS; (8) remain in contact with DCS; (9) participate in all meetings and court dates; (10) have "stable employment and provide proof through paystubs"; (11) resolve his legal issues and inform DCS of any legal events; (12) complete an alcohol and drug assessment, follow recommendations, pass random drug screens, and remain drug free; (13) take only medications prescribed to him and provide a prescription for each drug screen; and (14) follow the recommendations of his psychological evaluation.
Similarly, Mother was required to: (1) sign releases of information; (2) ensure that anyone living with her agreed to a background check, drug screen, and to cooperate with DCS; (3) notify DCS within 24 hours of any contact information change; (4) provide a copy of her lease agreement to DCS; (5) "refrain from drinking"; (6) "resolve all legal issues" and inform DCS of any legal events; (7) consent to a home study; (8) be "able to provide a safe, stable living environment for her children"; (9) have stable employment and provide proof through paystubs; (10) apply for the SafetyNet program; (11) have reliable transportation; (12) get her driver's license reinstated; (13) complete an in-patient alcohol and drug program; (14) address her alcohol and drug issues by participating in classes, remaining drug free, and passing drug screens; (15) follow all recommendations of her psychological evaluation; (16) complete domestic violence classes and not expose her children to abuse; (17) answer and return phone calls from DCS; (18) attend court and meetings as scheduled; (19) join Alcoholics Anonymous ("AA") and have a sponsor; (20) complete parenting classes; and (21) be able to provide for the children's basic needs.
On February 7, 2014, DCS petitioned to terminate Mother's parental rights to her five children, and Father's parental rights to Markus and Makayla.
A. Proof at Trial
The juvenile court conducted a trial on the petition to terminate Mother's and Father's parental rights on May 5 and July 11, 2014. In addition to Mother's and Father's testimony, DCS presented the following witnesses: Father's therapist; Mother's counselor; the director of a counseling program Mother and Father attended ("counseling director"); two therapists for Bonnie, Emily, and Jacob; two visitation supervisors; a Child Protective Services investigator; DCS workers; and a drug test administrator.
At trial, Mother admitted that she continues to drink "a little." Mother stated, "I've been a lot better than I really ever have lately, " but she still drank "two or three beers" about "once a week." Mother agreed that, in March 2014, she told a DCS counselor that she was "[drinking] to get drunk" three to four times a week. She also admitted to being arrested for public intoxication and disorderly conduct between the first day of trial and the day the trial resumed. She was also arrested for domestic assault in October 2013, as a result of an altercation she had with Father while she was drinking. Although Mother had visited the children several times since they were removed, she stated that she and the children no longer have a relationship. Mother testified that she lived with her mother and was trying to regain her driver's license.
A number of counselors and DCS workers testified regarding Mother's alcoholism and drug use. A Child Protective Services investigator stated that Mother tested positive for methamphetamines, amphetamines, cocaine, THC, and opiates in October 2011. A counseling director testified that Mother completed several counseling programs arranged by DCS: a parenting class and assessment, a twenty-week domestic violence class, and individual counseling. Mother also participated in a twenty-four week drug and alcohol program, but the director stated that Mother "was not compliant throughout that program." Mother did not call-in every day to report her alcohol and drug status. She did not fulfill the journaling requirements, and she did not regularly attend AA meetings. The director testified that Mother had relapsed into her alcohol addiction several times during the alcohol program. Similarly, Mother's counselor testified that Mother "sporadically" attended AA meetings.
Two visitation supervisors testified about Mother's visitation with the children. The first visitation supervisor testified that Mother's visits with the children were "chaotic." The supervisor stated that the children could be chaotic even when they were not with Mother, but that they behaved better when they had "structure." The second visitation supervisor testified that the children's visits with Mother were sometimes "disorganized, " and that Mother could seem "preoccupied." Although she agreed that the children were not in danger during the visits, the supervisor did not observe any bond between Mother and the children. However, the therapists for Bonnie, Emily, and Jacob testified that the children had a bond with Mother. Despite that bond, they recommended the children no longer have visitation with Mother because "every time they saw [Mother] there was a spike in their behavior, that they would come home and have a fit. They'd have a tantrum."
Father admitted that he had taken marijuana and prescription Lortab when the children were removed from his home in November 2011. He largely maintained that he had not been able to visit the children because of scheduling difficulties with DCS. Despite his lack of visitation, Father maintained that he had a good relationship with the children. When asked to describe his relationship with the children, Father responded, "I've got [sic] a good relationship with them. We haven't seen them and they miss us."
Several witnesses testified regarding Father's drug use. A Child Protective Services investigator testified that Father admitted to her that he was using THC, Lortab, and alcohol when he was arrested in October 2011. A DCS team leader testified that Father completed a drug rehabilitation program in spring 2012. However, she stated that Father passed three drug tests, missed eight tests, and failed two tests between February 2012and April 2013. In April 2012, he tested positive for oxycodone. On September 14, 2012, Father was "found to be tampering with the drug screen." Less than one week later, Father tested positive for marijuana and oxycodone. A social services case manager testified that she attempted to arrange drug tests for Father from September 2013to April 2014. During that period, Father missed at least five drug tests, passed one test in September 2013, and failed one test in October 2013 when he tested positive for THC. Finally, an independent drug test administrator testified that she attempted to conduct a hair follicle drug screen on Father following the first day of trial, on June 27, 2014. Father left the drug testing facility before an adequate sample had been collected, even though the administrator informed him that the sample was incomplete. Father testified that he stopped using marijuana in January 2014.
Testimony also centered on Father's progress in addressing his anger issues. Father's therapist testified that, after monthly therapy was arranged for him, Father went to only three sessions, the last of which was in December 2013. The therapist opined that Father had made some progress in therapy, but Father was not able to fully address his "outside stressors" in therapy. The counseling director stated that Father did not complete any programs at the counseling center-he was "very resistant to being there." The social services case manager verified that Father completed an anger management course. A DCS team leader testified that Father completed a parenting assessment, clinical assessment, and psychological evaluation. However, she stated that Father had failed to "demonstrate appropriate parenting skills and [ ] the ability to manage anger appropriately."
B. Order Terminating Parental Rights
In an order entered July 16, 2014, the juvenile court terminated Mother's and Father's parental rights. The court found two statutory grounds for terminating Mother's rights, substantial noncompliance with the permanency plan and persistence of conditions. The court found three statutory grounds for terminating Father's rights: abandonment for failure to visit, substantial noncompliance with the permanency plan, and persistence of conditions. The court concluded that Father had abandoned his two children under Tennessee Code Annotated §§ 36-1-113(g)(1) and -102(1)(A)(i) (2014) because he had only visited his children once during the relevant four-month period preceding the filing of the petition to terminate.
As to the substantial noncompliance ground, the court concluded:
While [Father] did complete some of the tasks on the permanency plan, he only visited with the children one time in the four months preceding the filing of the petition. The Court had ordered that he show a pattern of clean drug screens before he could visit, and [Father] was unwilling to take or unable to pass the screens. [Father] did not participate in individual counseling as recommended by his psychological evaluation.
While [Mother] did complete some of the tasks on the permanency plan, she still has [a] significant substance abuse issue. She admitted to [the] Foster Care Review Board and her case worker in March 2014, that she continues to drink 3-4 times a week and did that to get drunk. She was arrested in May 2014, for public intoxication and disorderly conduct. She has not been able to demonstrate the skills she has learned in parenting despite two years and eight months of therapeutic visitation.
Regarding the persistent conditions ground, the court stated:
It is clear the children have been removed for more than six months. The children were taken into DCS's custody on November 2, 2011, and, since that date, [Mother] and [Father] never regained custody of the children.
Secondly, the Court concludes that the conditions which led to the children's removal still persist. In the underlying dependency and neglect proceeding here, the Court found that removal was proper due to [Father's] and [Mother's] drug and domestic violence issues. The conditions still ...