Assigned on Briefs July 8, 2015
Appeal from the Juvenile Court for Washington County No. 14655 James A. Nidiffer, Judge
Jessica C. McAfee, Greeneville, Tennessee, for the appellant, Christina L.
Sandy Phillips, Johnson City, Tennessee, for the appellant, Ian C.
Janie Lindamood, Johnson City, Tennessee, Guardian ad Litem.
Russell J. Kloosterman, Johnson City, Tennessee, for the appellee, Julie V.
D. MICHAEL SWINEY, J., delivered the opinion of the court, in which JOHN W. MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.
D. MICHAEL SWINEY, JUDGE
The Child was born in January of 2013. Mother was incarcerated at that time. Just prior to her birth, the Child was adjudicated dependent and neglected. After her birth, the Child was released from the hospital to the custody of Julie V. The Child has remained in Julie V.'s exclusive custody since that time.
In February of 2014, Janie Lindamood, the Child's guardian ad litem, and Julie V. filed a petition seeking to terminate the parental rights of Mother and Father to the Child ("the Petition"). The case was tried in November of 2014.
The parties stipulated at trial that the relevant four month statutory period as to Mother's rights was September 28, 2013 to January 28, 2014. It was stipulated that Father was incarcerated from January 29, 2013 through trial, and the parties stipulated that the relevant four month period for Father was September 29, 2012 to January 29, 2013.
Sandra Rawls, Father's probation officer, testified at trial. Ms. Rawls was Father's probation officer from when Father was placed on probation on May 25, 2012 until his probation was revoked and he was ordered to serve his sentence on February 19, 2014.
Ms. Rawls explained that Father was placed on probation on May 25, 2012 in Washington County Criminal Court for possession of drug paraphernalia, simple possession of Schedule II, possession of Schedule II with intent to sell, driving on revoked license, and simple possession of Schedule III. Ms. Rawls testified that Father reported for intake on June 8, 2012. She stated that he was an hour and thirty minutes late for his appointment and that he argued with staff about the probation rules and kept staff in the office after regular business hours.
Father tested positive for cocaine on July 19, 2012. He also failed to make a payment on his probation fees and his court costs. Ms. Rawls testified that Father did not have a job and did not complete any community service. She stated that a violation warrant was issued on August 3, 2012 due to Father's positive drug test of July 19, 2012. Father's probation was revoked on October 4, 2012 and later reinstated with no change of the sentence expiration date of May 23, 2021.
Father was arrested on January 18, 2013 for driving on a suspended license. Father pled guilty to that offense on March 13, 2014 and was placed on unsupervised probation for five months, twenty-nine days, which was to run concurrent with his criminal court cases.
Ms. Rawls testified that Father committed the offenses of resisting arrest and possession of cocaine for resale on January 29, 2013. A violation warrant was issued for Father's three new offenses on February 1, 2013. The charges of possession of cocaine for resale and resisting arrest were dismissed on February 19, 2014, but Father's probation in the criminal court cases was revoked and Father was ordered to serve 8 years, 11 months, and 29 days in the Tennessee Department of Corrrection.
Ms. Rawls testified that at the time of trial on the Petition Father did not have any future action dates scheduled until August 1, 2016 and that as of November 5, 2014, Father's sentence expiration date is April 14, 2019.
Father testified at trial. He testified that while Mother was pregnant with the Child, she told Father that it might be his child or the child of another man. After the Child was born Father received a photo of the Child on his phone and then received a phone call from Mother, who was in jail, telling him that the Child might be his child. Mother gave Father Julie V.'s phone number. Father testified that he contacted Julie V. on the day he received the number. Father testified:
I called, I don't know if I called or texted, but I talked to Julie and I asked her if I could see [the Child]. She told me no, 'cause the judge said something, and then she told me that I don't need to worry about it because she took, she took [the Child] to the pediatrician and the pediatrician said the baby was white.
Father insisted that Julie V. told him that he did not need to worry about it.
Father admitted that prior to going to jail he told his sister and his mother that the Child might be his child. The Child was born on January 16, 2013. Father was incarcerated on January 29, 2013. Father admitted that he was not incarcerated until thirteen days after the Child was born and that he was notified of the Child's birth within days of the birth. Father admitted that he has no relationship with the Child.
Father did not pay anything toward prenatal or birthing expenses while Mother was pregnant with the Child. Father provided Mother with no support during Mother's pregnancy. Father admitted that he never has provided any support for the Child to Mother or to Julie V.
Father filed a petition seeking to establish paternity on September 13, 2013. Father was asked if he took any action to establish paternity within 30 days of the Child's birth, and he stated: "I was in jail. . . . No.- Father, however, then admitted that he still was in jail when he filed the petition to establish paternity in September of 2013.
Father testified that he was employed with ACT prior to his arrest. Father could not recall how long he had worked for ACT. Father was asked how long before his incarceration he was fired from ACT, and he did not know. Father admitted that he had income available to him before he went to jail.
Father testified that he did not smoke before he went to jail, but that he did drink beer and liquor. He testified that his sister paid for the beer and liquor. Father testified that he was living with his mother prior to going to jail. He was asked if he paid rent to live with his mother, and Father stated: "I had a little bit of money saved up when I had a job, so I gave that to her.- Father testified that he could not recall how much money he gave to his mother because it had "been almost two years ago, two, three years ago."
Father was asked if he paid for the drugs he had in his possession when he was arrested, and he stated: "No. . . . I was never actually with any drugs on my person." Father was asked if the drugs were in his vehicle, and he stated: "But I wasn't driving in 2013. That's two different incidents. My driving on revoked license is a different incident from when I was arrested for the resisting arrest, two different incidents." Father was asked where the cocaine was located when he was arrested in January of 2013, and he stated that it was on the ground. Father stated that he also was on the ground because he had been tazered. Father was asked if there was anybody else around at that time, and he stated: "No." He was asked if the cocaine fell off his person, and he stated: "No. They found it near where I was at." Father testified that when he was tazed the cocaine just happened to be lying on the ground close to him.
Father testified that he was not a cocaine dealer and that he did not use cocaine. Father then admitted that he "used it once. That's what I failed my drug test for." Father was asked how much the cocaine he used cost, and he stated: "I'm not sure." Father was questioned further about the cocaine, and the following exchange of questions and answers occurred:
Q. Now it's your testimony here today that you never used cocaine but one time?
Q. And you acknowledge that you tested positive for cocaine in 2012 when that violation of probation [sic]?
Q. And the eight year sentence that you've been convicted for, in that you were charged with possession of cocaine, as well as possession for resale or re-manufacture?
Q. You still want to stick to that testimony that that was the " " you've only used cocaine one time?
Q. All right. I guess you were innocent when you got that eight year conviction?
A. I guess I'm not if I'm doing eight years.
Father admitted that he has a disciplinary write-up for fighting on October 28, 2013. Father pled guilty to the write-up for fighting. He was asked if he had a history of propensity for violence, and Father admitted that he had "a simple assault."
Father admitted that he "probably did say" that the Child looked very much like another one of his children, and so he knew that it was a possibilty that the Child was his child. Father was twenty-three years old at the time of trial and had three children including the Child.
Father admitted that after the Child was born he exchanged text messages with Julie V. on January 23, 2013, and that during that text exchange he was advised that he would need to establish paternity if he wanted to see the Child. Father admitted that he responded by texting that he would call his attorney the next day. Father admited that the text exchange occurred before he went to jail, and Father stated that he "came to jail, what, five days later?" Father also admitted that during that text exchange he was advised that the case was in the Johnson City Juvenile Court before Judge Sharon Green, but that he did not try to contact the court.
Raymond Chismar, an investigative officer who works for the Tennessee Department of Correction, testified at trial. Mr. Chismar did a presentence report on Mother for the offense of theft over $500. Mother was sentenced to one year of probation for that charge. When asked if he met with Mother, Mr. Chismar testified:
I did not. Upon reviewing the file I did see what happened with her probation. . . . It looks like she was sentenced to one year of supervision for theft over 500 in Case 36415 and I found a revocation order which states that [Mother] never showed up at our office for any sort of community supervision and she was later revoked for absconding from probation and for some new charges and was ordered to serve one year in the TDOC.
The revocation occurred on May 13, 2014. Since the revocation, Mr. Chismar and his office are no longer in charge of supervising Mother, and they have had no dealings with Mother since the revocation.
Susan Holshue, a registered nurse, testified at trial. Ms. Holshue does volunteer work for CASA and was assigned to this case in approximately May of 2014. Ms. Holshue did a home visit with Julie V. She also spoke with Mother at the courthouse the last time the parties came to court. This was the only time Ms. Holshue met with Mother. Ms. Holshue never met with Father.
Ms. Holshue testified: "[Mother] called me a couple of times when it was – when she had requested visitation through the court and we spoke about how she needed to get more paperwork updated where the judge had allowed her visitation." Ms. Holshue explained that these calls happened about one month prior to trial. She stated: "It was after we had been to court and she asked about visiting and the judge said that we would keep the order as it was last fall and the court lady wanted a more update [sic] approval for court visit, for the Court Clinic visitation."
Ms. Holshue was asked what she found with regard to Mother, and she stated: "It was very difficult to contact her. A couple times I called and got a message on the phone number. Can't remember exactly what it said but might have said the mailbox is full or this number has no more minutes. And sometimes it went, just rang and never picked up." Ms. Holshue stated that Mother had given her a couple of phone numbers and that Mother had the CASA card with the information for how to contact Ms. Holshue.
Ms. Holshue was asked where Mother resided, and she stated: "I don't know her to reside any particular place. She told me she was residing with a friend and then when I tried to verify that I couldn't verify that information." Ms. Holshue never was able to verify where Mother was living. Ms. Holshue was asked what else she learned about Mother, and she stated: "Well, I knew she'd had some violations and that she was in jail here in Johnson City when, at last court, and then I had heard she had gone to Carter County."
Ms. Holshue was asked what Julie V.'s house was like, and she stated: "Well taken care of, clean, plenty of clothes for [the Child] and appropriate toys." Ms. Holshue described the relationship between the Child and Julie V. stating: "Very close relationship. And even when I was there she wanted to show me around the house. She was a very friendly little kid. Had been well taught." Ms. Holshue testified that the Child and Julie V. appeared loving toward one another. Ms. Holshue was asked if she thought that removing the Child from Julie V.'s custody would harm the Child, and she stated: "That's the only place [the Child] has ever known as home, so yes, I think it would harm her."
Julie V. testified that she is not related by blood to either Mother or Father. Julie V. has known Mother all her life, and the two call each other cousins even though they are not related by blood. Julie V. explained that she has custody of the Child because, when Mother gave birth, Mother requested that Julie V. go to court and file a petition for custody so that the Child would not go into State custody. Julie V. was not present when Mother gave birth, but arrived shortly afterward and remained until the Child was released from the hospital. The Child was released from the hospital into Julie V.'s custody and has remained in Julie V.'s exclusive custody since that time. The Child was almost two years old at the time of trial. Julie V. testified that the Child is meeting all of her milestones.
Julie V. testified that she is financially able to provide for the Child. Julie V. is employed at Independent Living Solutions, and she stated that she was graduating soon and had contracted with Modern Women of America for a financial position. Julie V. has received no financial contribution of any sort from Father or Mother. Julie V. also has received no gifts for the Child from Mother or Father.
Julie V. is not married. She resides in a three bedroom house with her boyfriend, Aaron E., his daughter, and the Child. The four have resided together since February of 2013. The Child calls Julie V. "Mom." The Child calls Julie V.'s boyfriend "Daddy." The Child has had a parental relationship with Julie V.'s boyfriend since the Child was one month old. Julie V. testified that she never has been arrested or convicted of anything and there is no criminal activity in her home. She testified that her boyfriend also never has been arrested and has no criminal convictions. Julie V. testified that she has good family support from her parents, grandparents, aunts, and uncles. The Child calles Julie V.'s parents "Nana" and "Papaw Jimmy."
Mother had no visitation with the Child between September 28, 2013 and January 28, 2014. Mother had the right to exercise visitation with the Child during that time period through the Court Clinic. Julie V. testified that the Court Clinic did set up a visitation and the Child was present but Mother never showed up for that visitation.
Mother did have a visit with the Child between the time of the previous court hearing and trial. This visit occurred at McDonald's. Mother showed up to the visit approximately ten minutes late. Forty minutes after the visitation started the woman supervising the visitation called Julie V. and asked her to come pick up the Child. Julie V. and her boyfriend both went to pick up the Child. Julie V. testified:
When we returned they were outside playing. [The Child] kept trying to come over to me and [Mother] handed her to me. We walked in and then she seemed, she seemed like she was going to be able to stay and play a little more. [The Child] seemed like she was going to be able to play a little more, so they sat down in the booth behind, actually directly in front of me. I was facing them. And [Mother's] eyes were barely open. She turned to point at something in the Play Place and she was slurring her words and obvious, to me, that she had taken something. . . . When she was looking, she'd turn to the side, was looking up and her eyes were only halfway open. . . . It continued through the remainder of the visitation. . . . Probably twenty or thirty minutes after we got there.
Mother did have three visitations with the Child that occurred outside of the relevant four month period. Julie V. testified:
When [the Child] was first born [Mother], [Mother] called every day for maybe, I don't know exactly how long. But that was it. There's not, there's not been " " maybe a few conversations. I don't exactly remember. Not many conversations, no. . . . No, but any time [Mother] talked to me she didn't ask about [the Child]. She would call to yell at me or argue with me or ask me why did I do this, or she just don't understand. It was never about the child.
Julie V. was asked about the three visitations that Mother had with the Child outside of the relevant four month period, and she stated:
Okay. The first one was, I don't remember the exact date; it was shortly after [the Child] was born. I went to go to pick [Mother] up, brought her to my mother's house. She was there for two or three hours. She never held the child and she stayed on the phone or texted the entire time. Even if she did hold her, I don't recall that she did except for maybe a couple of pictures, but she talked to my mom for the whole time.
This visit occurred shortly after Mother was released from jail in April. Julie V. testified:
The next visit was a few months later, I don't recall the exact date, but it was at McDonald's and she, [the Child] was still in a carrier so she was still really small. And I took her to McDonald's and we sat in the Play Place and she looked at her and talked to her and played with her a little while. We were there about an hour and then we left.
Julie V. testified:
The third visit was at Rotary Park and . . . Rotary Park was in July. I think it was towards the end of July. I don't know the exact date. But that was after a court hearing and Judge Green said " " that's when Judge Green said to give the regular visitation 'cause before then it was just whenever the mother would call for whenever she wanted to see her. I took her to the park and every time I would try to get close to her she would take the baby off further away. I couldn't keep, couldn't keep them hardly in my distance, in my sight. And then she only came back when she needed a diaper. And at that visit she took [the Child] to a van of people that I did not know and as far as I knew, I didn't know what they were doing. I didn't know the people. All I knew is that there were several other people that had come to this visitation. It wasn't just her, like the visitations were supposed to be. So when we left the visit that day, first thing Monday morning I called the court, I spoke with Charlene Davenport and she expedited Janie Short to be able to do the visitations because I no longer felt comfortable to do that.
Julie V. was asked if the court already had ordered the Court Clinic to be involved in the visitations, and Julie V. stated: "Yes, she'd already ordered . . . the Clinic but she said I would do this one until the Court Clinic became available and that's why they expedited Court Clinic to become available immediately."
Julie V. would like to adopt the Child if she becomes available for adoption. Julie V. testified that the Child is bonded to her. She stated: "Well, she's constantly at my feet. If I take a step she takes a step. We do everything together. Sometimes she goes to work with me. She's – if I'm anywhere she wants to be there. We read books together. She constantly gives me hugs and kisses." Julie V. believes that it would harm the Child if she were taken from Julie V.'s custody and given to Mother. She stated:
[Mother] doesn't have a permanent home, so [the Child] wouldn't know where she's going to sleep from night to night. In my home she has a bed. You say, let's go to bed. She knows which room to go to. . . . [Mother] doesn't, [Mother] does not live a lifestyle that is conducive to having a toddler.
Julie V. was asked if she loved the Child, and she stated: "Yes, very much." She also testified that her boyfriend loves the Child and that the Child loves both her and Aaron E. Julie V. testified that Aaron E.'s daughter was ten years old at the time of trial and that she and the Child are like sisters and are "crazy about each other." Julie V. thinks it would be detrimental to both the Child and Aaron E.'s child if they were separated. She stated: "[The Child] has to tell [Aaron E.'s daughter] good night every single night, give her a kiss. And if she's not there for some reason we call and let her tell her goodnight over the phone."
Aaron E. testified that he was thirty"nine years old at the time of trial. Aaron E. has worked as an officer of the court for approximately eight years. Aaron E. was asked what kind of relationship he has with the Child, and he stated: "She's a part of my family. She, Julie lives with me. We call her [the Child], but [the Child's] a part of my family. She's very close to my daughter who's ten. There's no other way to say it, that she's a part of my family." Aaron E. testified that he loves the Child.
Aaron E. testified about the last visitation between Mother and the Child. This was the visit that took place on a Sunday afternoon in October at McDonald's. The visit was scheduled to be between 3:00 p.m. and 5:00 p.m. Aaron E. accompanied Julie V. and the Child to the visit, and they arrived around 2:45 p.m. Mother arrived at 3:07 p.m. Aaron E. testified that when Mother arrived "she was fine" and "friendly" and was not demonstrating any signs of being under the influence. The visit was supervised by Janie Short through the Court Clinic. A few minutes after Mother arrived, Aaron E. and Julie V. left. Approximately one hour later Julie V. received a call from Ms. Short asking her to come back. So Julie V. and Aaron E. went back to the McDonald's. They located Mother, the Child, and Ms. Short outside in a grassy area and the entire group went back inside the McDonald's and sat down. Aaron E., Julie V., and Ms. Short sat at one booth and Mother and the Child sat in a booth behind where Ms. Short sat. Aaron E. was facing Mother and the Child from where he was sitting. Aaron E. was asked if Mother was still "fine" and he stated:
No, Ma'am. Her " " she was speaking to [the Child] and her speech was very slurred, and if I remember right she was asking her about if she liked her chicken nuggets or liked her Happy Meal and her speech was very slurred and her eyes were kinda rolling, kinda to the left and to the right and her eyelids were very heavy and she was kind leaned, leaned over to the side in her, in the booth, in the seat. . . . [T]hat's the way she was the rest of the visit. . . . I think we may have stayed another fifteen mintues or so, maybe twenty. It wasn't long. We didn't stay for the full, for the full hour after we got back. I think it was about another fifteen or twenty minutes, if that.
Aaron E. testified that Mother asked for the visit to be ended early.
Aaron E. was asked if he thought it would be in the Child's best interest to be returned to the custody of Mother or Father, and he stated:
My opinion is that it would absolutely be detrimental. Julie is that child's mother without a doubt. That's who she runs to for security. If she bumps her toe that's where she goes. That is her mom and it would absolutely be detrimental for [sic] to be anywhere else. I believe that with all my heart.
Aaron E. was asked if he thought it would be detrimental for the Child to be separated from his daughter, and he stated: "Yes. Absolutely. She loves [my daughter]. You know, that's her big sister and [my daughter] loves her. I mean, regardless, that " " she's our family. Two years is a long time." He was asked if he intended to remain a part of the Child's life, and he stated: "Absolutely."
Mother was late for trial and when asked about it she stated that she had written the date down for a different day. Mother stated: "I'm always on time at court."
Mother testified that she lives with her mother and has since she was released from jail. Mother was released from jail in April of 2013. She stated that she had lived with her mother continuously since her release. Mother was asked about a court order that found she was bouncing back and forth between her mother's home and her sister's home, and she stated: "Yeah, they was living, like right down the street from each other and my sister worked and I'd just go there and babysit and I'd stay there sometimes and . . . . But not permanently, I didn't permanently live with her."
Mother testified that she was employed at KFC for a little over a month. Mother was asked if she lived with her mother while she was working at KFC, and she stated: "I was living with Misty Buck. She's a friend of the family." Mother was asked why she testified that she was living with her mother non"stop and then stated that she was living with Misty Buck, and she stated: "Not non"stop through since she was born. I didn't " " when she was " " when I was first released after she was born I lived with Misty for just a couple of months until I went back to my mom's."
Mother was asked again about her statement that she lived with her mother since her last release in October of 2014. Mother was asked why she gave Misty Buck's address as the place where she was living during the last court hearing. Mother stated: "I " " all of my mail and everything is still sent to her address. . . . It's the address that's still on my identification card." Mother was asked how many times she had resided with Misty Buck during the last two years, and Mother stated: "Maybe three." Mother was asked how many times she has lived with her mother during that time period, and she stated: "Of the times that I'm not living with Ms. Buck." Mother then was asked about living with her sister, and she stated "I never said I lived with my sister."
Mother admitted that she knew where the Child was but that she never sent any money for the care of the Child. She stated: "I asked Julie many times if she needed anything and she always said no." Mother was asked why she did not get the Child a birthday present, and she stated: "I'm not allowed to " " I mean, if I would've been allowed to see her or I don't even know, besides Julie's phone number I have no other way of contacting anybody or anything. . . . I knew who she was living with but not exactly where they " " I don't know exactly where Julie lives." Mother admitted that she knew that the Child was her child and that she was responsible for the Child but that she never paid any support for the Child during the relevant four month period. Mother also admitted that since the petition was filed she has paid no child support and has given the Child no gifts.
Mother was asked when the last time was that she held a job, and she stated: "Before I was incarcerated I was at ACT, " for "[a] couple months. You know, just a month and a half." Mother admitted that she smokes "a couple [cigarettes] a day, " and that she purchases "[m]aybe a pack a week." Mother was asked if she would be clean if she were drug tested that day, and she stated: "I'm prescribed Subutex and Klonopin." Mother presently is on house arrest ...