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In re Dustin T.

Court of Appeals of Tennessee, Knoxville

November 17, 2016


          Assigned on Briefs August 2, 2016

         Appeal from the Circuit Court for Bradley County No. V-15-476 J. Michael Sharp, Judge

         The Department of Children's Services ("DCS") filed a petition to terminate the parental rights of the mother and father to their three children. The father was incarcerated in Georgia when the children were determined to be dependent and neglected, and the mother tested positive for illegal drugs and had illegal drugs and drug paraphernalia in her home when the children were removed. DCS developed three permanency plans over the course of eighteen months, with responsibilities set out for each parent. When it appeared that neither parent was in substantial compliance with the third plan, DCS filed a petition to terminate their rights. The trial court found the evidence clearly and convincingly supported the grounds DCS alleged for terminating the parents' rights and determined it was in the children's best interest that their parents' rights be terminated. Both the mother and father appeal the termination. We affirm the trial court's judgment.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed.

          Wilton Marble, Cleveland, Tennessee, for the appellant, April L. T.

          L. Ashley Gaither, Cleveland, Tennessee, for the appellant, Chad T.

          Herbert H. Slatery, III, Attorney General and Reporter, and Brian A. Pierce, Assistant Attorney General, for the appellee, State of Tennessee, Department of Children's Services.

          Andy D. Bennett, J., delivered the opinion of the court, in which Charles D. Susano, Jr., J., joined. J. Steven Stafford, P.J., W.S., filed a dissenting opinion.



         I. Factual and Procedural Background

         April L. T. ("Mother") and Chad T. ("Father") are the parents of Dustin T., Kaden T., and Katelyn T. (together, "the children"), who were born in 2007, 2008, and 2009, respectively. DCS received a referral on August 14, 2013, that the children were unsupervised and that they were exposed to illegal drugs and domestic abuse. DCS responded the following day with a police officer, whom Mother admitted into the residence and who found a methamphetamine pipe as well as several small packages of hydrocodone and Xanax. Mother was charged with possession of schedule III and schedule IV narcotics for resale and possession of drug paraphernalia.[2] Mother agreed to undergo a hair follicle test. Based on Mother's suspected drug use and the results of the hair follicle test, DCS filed a petition for temporary legal custody of Dustin T., Kaden T., and Katelyn T. Father was incarcerated in Georgia when the petition was filed.

         The Bradley County Juvenile Court issued a protective custody order on August 26, 2013, based on Mother's drug use and Father's unavailability. The children were adjudicated dependent and neglected by a magistrate in October 2013, and that determination was affirmed by the Bradley County Juvenile Court in 2014. The children were placed together in a foster home, where they have remained throughout the pendency of this case.

         Three permanency plans have been entered in this case. The first permanency plan, dated September 12, 2013, had the goal of returning the children to Mother's custody. Mother acknowledged and signed the plan on December 4, 2013. The plan was sent to Father at the correctional facility where he was then incarcerated. Father received the first plan, signed it on December 9, 2013, and returned the page bearing his signature to DCS. The plan included a goal target date of March 12, 2014, and it included the following parental responsibilities for Mother:

1. Signing all required releases for DCS to ensure proper case management;
2. Obtaining an alcohol and drug assessment and following all recommendations;
3. Not being around those who abuse or use illegal drugs;
4. Submitting to random drug screens;
5. Not being in possession of any illegal substance or drug paraphernalia;
6. Making sure the children are supervised by an appropriate and sober adult at all times;
7. Following all local, state, and federal laws;
8. Being informed of any medical or dental appointments for the children;
9. Taking only medications that are prescribed for her;
10. Participating in individual counseling and following all recommendations;
11. Participating in any educational meetings held for the children;
12. Providing DCS with proof of legal income;
13. Providing DCS with a copy of a current and valid driver's license, car insurance, and vehicle registration;
14. Maintaining residential stability for a minimum of six months;
15. Contacting the family service worker with any change of circumstance within twenty-four hours; and
16. Providing DCS with a copy of rental/lease agreement.

         Father's responsibilities were nearly identical to Mother's. His responsibilities did not include the items listed at numbers 9 and 10, above, and he was required to resolve all pending legal matters. Mother signed a statement on December 4, 2013, indicating that she understood her responsibilities under the permanency plan, and Father signed the same statement indicating he understood his responsibilities on December 9, 2013.

         A second permanency plan was developed in March 2014 and signed by Mother the following month.[3] Mother's and Father's responsibilities under the second plan were the same as in the first permanency plan, and the overall goal was again to return the children to Mother's custody. When neither Mother nor Father satisfied their responsibilities by the date set forth in the second permanency plan, a third permanency plan was developed that was dated September 24, 2014. Unlike the first two plans, the third plan added the goal of adoption to the goal of returning the children to one or both parents. The third plan increased Mother's responsibilities to include the requirements that Mother pay child support as ordered and that Mother call the children as scheduled. Mother participated by phone in the meeting when the third permanency plan was developed, and her attorney signed off on the terms of the plan. Father did not participate in the development of the third plan, but he was in court when this plan was ratified on October 2, 2014.

         Father was incarcerated for all but four months of the time during which the children were in foster care. The record includes documents indicating Father pled guilty to the following felonies that occurred in May and September 2006: multiple counts of burglary other than habitation; theft of property valued between $1, 000 and $10, 000; burglary other than habitation; conspiracy to commit burglary; and aggravated burglary. Father was sentenced to serve ten years, but his sentence was suspended and he was placed on probation on December 10, 2007. In 2013, Father was pulled over by a police officer in Georgia and charged with driving without a driver's license and evading arrest. Father was incarcerated in Georgia when the children were determined to be dependent and neglected and placed into State custody. He spent nine months in prison in Georgia, and while he was there, Father completed two courses called "Motivation for Change" and "Active Parenting Now" in an effort to improve his parenting skills. He was able to speak with the children a few times while he was incarcerated in Georgia.

         After being released from prison in Georgia, Father was held in South Carolina in the spring of 2014 on a charge for grand larceny dating from 2006. Father was found not guilty of that charge and was released on May 21, 2014. Father turned himself in to the authorities in Tennessee when he realized warrants were out for his arrest, and he returned to prison on September 2, 2014, to complete his sentence dating from 2006 and 2007. During the four months he was out of prison, Father did not contact DCS or attempt to visit his children.

         A probation revocation order shows that Father's probation in Tennessee was revoked in 2015 due to his leaving the State without permission, absconding supervision, committing a felony in Georgia, and being indicted for additional felonies in Bradley County. It is not clear when Father may be released from prison. He was incarcerated when this case was tried in October and November 2015.

         Turning to Mother, the record shows that she failed to comply with several provisions of the permanency plans. Mother was arrested in January 2015 for driving on a suspended license and pled guilty to two counts of the same offense.[4] Mother was also arrested that same month for an incident involving public intoxication and domestic violence. At the time of trial, Mother was incarcerated as a result of her failure to pay the fines imposed in 2014 resulting from when she was charged and convicted for the felonies of possession of schedule IV drugs and possession of schedule III drugs for resale, and the misdemeanor of possession of drug paraphernalia, which occurred when the children were placed into the State's custody.

         One of the requirements of the permanency plans was that Mother provide DCS with proof of legal employment. During the pendency of this case, Mother provided DCS with only three pay stubs, each from a different employer. According to Mother's testimony, she was employed by several different employers during this time period, but she failed to provide proof of other employment. Mother was also required to maintain residential stability for a period of six months and provide DCS with a copy of a rental or lease agreement. The proof showed that Mother had a month-to-month rental agreement for a house in Etowah, Tennessee beginning in July 2014, but she was evicted in April or May of 2015 due to her failure to pay the rent. She testified at trial that she is currently living with her brother and not paying any rent.

         The permanency plans require Mother to keep DCS informed of any change in circumstances within twenty-four hours. Mother has failed to keep DCS informed of her change in telephone numbers, her changes in employment, or her changes in residence in a timely manner. Kim Ash is the family service worker assigned to this case, and Ms. Ash testified that she has spent a lot of time throughout the pendency of this case attempting to contact Mother by phone for various children's appointments, child visits, counseling, random drug sampling, and court hearings, and she has driven out to Mother's various residences when she cannot reach Mother by phone in an effort to locate her and provide her with relevant information.

         Petition to Terminate

         DCS filed a petition to terminate Mother's and Father's parental rights on June 23, 2015, approximately twenty-two months after the children were removed from the parents' house. The petition cited four statutory grounds for the termination of their rights: abandonment by showing wanton disregard for the children's welfare by Father (Tenn. Code Ann. §§ 36-1-113(g)(1) & 36-1-102(1)(A)(iv)); substantial noncompliance with the permanency plans (Tenn. Code Ann. § 36-1-113(g)(2)); abandonment by Mother for failure to support the children in the four months immediately preceding the filing of the petition (Tenn. Code Ann. §§ 36-1-113(g)(1) & 36-1-102(1)(A)(i)); and persistent conditions (Tenn. Code Ann. § 36-1-113(g)(3)).

         The trial occurred on October 13 and November 4, 2015, and testimony was offered by the following individuals: Mother; Father; Ms. Ash; Pat Vasterling, who was an investigator for Child Protective Services and is the one who removed the children from Mother's custody in August 2013; Judith Coffman, who is a probation officer; Tamara Lively, who was the clinical therapist for the children; and both of the children's foster parents. The trial court issued a comprehensive ruling on February 29, 2016, in which it ruled that the State had proven by clear and convincing evidence all the grounds alleged for terminating Mother's and Father's parental rights and that it was in the children's best interest for Mother's and Father's rights to be terminated.

         Trial Court's Findings of Fact

         The court's findings of fact regarding Father included the following:

[Father] testified that he was aware that his children were in foster care and that this case was filed and monitored in Bradley County Juvenile Court .... He admitted that while he was at liberty and living in Bradley County for almost four months, he never called the Bradley County Department of Children's Services Office to inquire about the status of his children, the name of his family case manager and/or how to arrange for visitation with his children. [Father] turned himself in to the Bradley County Sheriff's Department on September 2, 2014 pursuant to several warrants for charges which had been issued prior to his Georgia incarceration. He has remained incarcerated in the Bradley County jail since that date. On April 27, 2015, the Bradley County Criminal Court revoked his probation on several charges and imposed a ten (10) year sentence which had been suspended since December 10, 2007 when he was found guilty of numerous burglaries and thefts. That probation revocation order found that [Father] had violated the conditions of his probation by leaving the State without permission, absconding supervision, a new felony conviction in Georgia and new felony indictments in Bradley County, Tennessee. [Father] was committed to the custody of the Tennessee Department of Corrections for ten (10) years with credit for eighteen months and twenty days "time served" as of that date. . . . [Father] testified that he hopes to be released on parole during January 2016, however, with more than eight years remaining on his sentence, after serving only 30% of that balance, he might not be eligible for parole until August 2017.

         Then, with regard to Mother, the trial court found, inter alia, the following:

On October 13, 2015, Family Service Worker, Kimberly Ash (hereinafter referred to as FSW Ash), testified that during the late Spring and Summer of 2014, [Mother] began to comply with the requirements set out in all three of the Family Permanency Plans in this case, however her compliance lasted for only a few months.
During July 2014 [Mother] became employed at Waupaca Foundry and obtained a Month-to-Month rental agreement for a residence located in Etowah, Tennessee. After FSW Ash arranged for in-home services which began in May 2014, [Mother] completed an Alcohol and Drug treatment program on July 22, 2014 and she participated in domestic violence victim counseling which Health Connect America provided for her at her residence.
On July 24, 2014, the Bradley County Juvenile Court ordered [Mother's] visitation to be supervised by a therapeutic visitation provider due to a breakdown between her and the foster mother. . . . [Mother] received regularly scheduled supervised visits from October through December 2014. FSW testified that during this time [Mother's] telephone contact with the children became sporadic and unreliable, and the children frequently attempted to reach their mother when she didn't call as expected. FSW Ash testified that usually they were not successful in reaching her. FSW Ash also testified that she had difficulty reaching [Mother] by telephone. FSW Ash attempted to leave numerous messages on [Mother's] phones. The latest phone number that she provided was frequently devoid of service and it had no voice mail available as her previous number provided. That prior phone service was deactivated. FSW Ash testified that [Mother] was slow and irregular about returning calls from Ms. Ash. The case manager attempted to reach [Mother] by leaving messages with her brother and other relatives, including her mother-in-law. It was finally [Father's] mother who was able to track her down when FSW Ash was urgently trying to reach her to provide consent for ear surgery that Katelyn needed.
The children's clinical therapist, Tamara Lively, testified that [Mother] attended family counseling with the children [for] approximately four weeks beginning in July until the end of August, 2014. After the four sessions, but before the counselor determined that the trust issues the children were having with their mother had been addressed, [Mother] called (when a session was already scheduled to begin and the children were sitting in the counselor's office) to say she was not able to attend due to what she claimed was a work schedule conflict. She was notified of two or three more family sessions that were scheduled by Omni Community Health, however [Mother] failed to attend and she failed to call to explain her absence at these sessions.
On September 19, 2014, [Mother] pled guilty and received two concurrent two-year sentences which were suspended with a Two thousand ($2, 000.00) dollar fine for each of the charges of Possession of Schedule III Drugs for Resale and Possession of Schedule IV Drugs for Resale. She remains on probation for those convictions. Probation Officer Judith (Jill) Coffman testified that, to date, [Mother] has paid only ninety ($90.00) dollars toward her probation fees and fines. She currently owes Five thousand, Six hundred Ninety-one ($5, 691.00) dollars in fees and fines to Bradley County Criminal Court. Officer Coffman stated that she has not filed a violation for failure to pay fines and fees yet. However, Officer Coffman testified that [Mother] is in violation of her probation requirements. [Mother] has reported once per month, however the officer noted that [Mother] has never complied with the date/time requirements when she was scheduled ...

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