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In re Mac L.

Court of Appeals of Tennessee, Knoxville

November 22, 2016

In re MAC L.

          Assigned on Briefs October 4, 2016

         Appeal from the Juvenile Court for Knox County No. 133651 Timothy E. Irwin, Judge

         This appeal arises from the juvenile court's termination of a biological father's parental rights. The juvenile court found clear and convincing evidence of three grounds for termination and that termination of the father's parental rights was in the best interest of the child. After reviewing the record, we conclude that the grounds for terminating parental rights set forth in Tennessee Code Annotated § 36-1-113(g)(9) and relied upon by the juvenile court were inapplicable to the father in this case. Nevertheless, because there was clear and convincing evidence of two grounds for termination of the father's parental rights and that termination was in the best interest of the child, we affirm.

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

          Robin Gunn, Knoxville, Tennessee, for the appellant, Shawn M.

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

          W. Neal McBrayer, J., delivered the opinion of the court, in which John W. McClarty and Brandon O. Gibson, JJ., joined.


         I. Factual and Procedural Background

         In November 2014, Jessica L. ("Mother"), who was unmarried, gave birth to a son, Mac. Mac's birth certificate did not identify a father. Mac was born with Neonatal Abstinence Syndrome ("NAS"), a medical condition caused by exposure to addictive opiate drugs while in utero.[1]

         Shortly after his birth, the Tennessee Department of Children's Services ("DCS") filed a petition in the Juvenile Court for Knox County, Tennessee, seeking to have Mac declared dependent and neglected and for emergency temporary legal custody. In the petition, DCS asserted that Mac's biological father was Shawn M. ("Father"). The petition also asserted that Father was incarcerated with pending charges for aggravated assault and theft. The juvenile court placed Mac in protective custody with DCS on November 26, 2014.

         Although DCS developed an initial permanency plan in December 2014, both parents agreed to a revised plan the following February.[2] The revised plan had concurrent goals of "return to parent and adoption" and outlined a series of requirements to help the parents achieve the desired outcome of reunification. Because this appeal concerns only Father's parental rights, we focus on Father's responsibilities under the revised plan.[3] Father agreed that he would be responsible for: (1) providing a safe and stable home; (2) obtaining a legal source of income sufficient to meet the family's basic needs; (3) allowing DCS to visit the home to monitor safety issues and appropriateness of the environment; (4) avoiding new legal charges; (5) resolving current/pending legal charges; (6) paying child support; (7) maintaining contact with DCS; (8) completing an alcohol and drug assessment; (9) participating in random drug screens; (10) establishing paternity; (11) completing a psychological evaluation; and (12) demonstrating the ability to handle anger appropriately.

         On March 13, 2015, the juvenile court conducted a review of the permanency plan.[4] Both Mother and Father attended. At that time, Mother and Father stipulated that Mac was dependent and neglected "due to [Mother's] substance abuse issues and severe abuse finding with regard to this child and [Father's] incarceration at the time of the removal, inability to provide appropriate care and supervision, mental health issues and substance abuse issues." The court found the responsibilities in the revised plan were reasonable and related to remedying the conditions that necessitated foster care. The court also explained to the parents the criteria for termination of parental rights.

         After reviewing the parents' progress, the court determined that they were not in compliance with the plan's requirements. With regard to Father, the court found:

[T]he alleged father is not in compliance at this time. [Father's] visits are not going well. [Father] is argumentative, aggressive and intimidating during visitations. [Father] is not open or receptive to suggestions from the visitation supervisors, stating that he has 8 children and knows how to care for children. [Father] mumbles to [Mother] during the visitation. [Father] was angry that the visitation for the mother and father was separated and he walked out. [Father] has not yet established paternity. [Father] has not done an Alcohol and Drug Assessment and he has not completed a Mental Health Assessment. [Father] is still awaiting his full psychological. [Father] does not have housing. [Father] has pending criminal charges.

         Based on these findings and the parents' stipulation, the court declared Mac to be dependent and neglected, reaffirmed the award of temporary custody to DCS, and suspended the parents' visitation rights. The court informed the parents that they could regain visitation, by filing "a Motion to Modify the Visitation and . . . provid[ing] proof to the Court that they are in compliance with the permanency plan, or substantial compliance, and . . . proof that they are able to behave appropriately with the child."

         The court held another review hearing on October 21, 2015. Neither parent appeared at the hearing, but their attorneys were present. Based on the evidence provided at the hearing, the court found that Father was still not in substantial compliance with the permanency plan. Although Father had completed a DNA test in June, he had not fulfilled any other requirements, and his whereabouts were unknown.

         On November 3, 2015, almost a year after Mac entered foster care, DCS filed a petition to terminate Father's parental rights. At the time the petition was filed, Father had not established paternity. DCS sought to terminate Father's parental rights on the grounds of abandonment by failure to visit or support[5] and substantial noncompliance with the responsibilities in the permanency plan. DCS also asserted Father's parental rights should be terminated under the grounds set forth in Tennessee Code Annotated § 36-1-113(g)(9), which is applicable to "a person who is not a child's legal parent when a termination petition is filed." In re Bernard T., 319 S.W.3d 586, 599 (Tenn. 2010). DCS filed a supplemental petition a few days later asserting Father's parental rights should be terminated on the ground of abandonment by an incarcerated parent.

         A. Proof at the Hearing on Termination of Parental Rights

         On February 24, 2016, the court held a hearing on the petition to terminate Father's rights. The DCS case manager, the foster mother, and Father testified.

         The DCS case manager's involvement with the case began shortly after Mac's removal. She testified that, because Mac suffered from NAS, he spent over a month after his birth in intensive care. Following his discharge from the hospital, DCS placed Mac in the care of a foster family that had experience with his medical condition. He was underweight and had significant muscular rigidity that affected his ability to crawl and, eventually, to walk. Mac needed multiple medical services, including speech, occupational, and physical therapy, to overcome his developmental delay. The case manager also explained that Mac would continue to need multiple services in the future, including a possible leg brace.

         The case manager related her efforts to assist Mac's parents. Because Father was in jail when the initial permanency plan was formulated, she testified that she worked with both parents to revise the plan to contain more specific responsibilities for Father following his release. She discussed the plan responsibilities with Father and the criteria for termination of parental rights.

         After the March hearing, at which the court found Father was not in compliance with the permanency plan, Father contacted her about scheduling a DNA test. The case manager reminded him of the other requirements in the plan and offered to help him schedule an alcohol and drug assessment and a psychological evaluation. According to the case manager, Father responded that he had had similar assessments in the past and could schedule one through the Helen Ross McNabb Center. She explained she needed him to complete new evaluations but agreed that he could wait and schedule them after receiving the DNA test results.

         Father submitted to DNA testing in June 2015, which confirmed that he was Mac's biological father. The case manager testified, however, that after she received the DNA test results, she was unable to locate Father to schedule the evaluations required by the plan. He failed to contact her or update his contact information. When she asked Mother about his whereabouts, Mother informed her that Father was either in Newport or Alabama. The case manager's last contact with Father before the termination hearing was on April 21, 2015. Beyond taking the initial step toward establishing paternity, Father completed no requirements of the permanency plan.

         The foster mother described her involvement with the child and his development. Mac came into her home on New Year's Eve 2014, but before that, she visited him once or twice a day in the neonatal intensive care unit. During the first couple of months in her home, Mac would scream continually from 7:00 to 10:00 p.m. each day as he suffered through drug withdrawal. He experienced severe reflux, spitting-up thirty times a day, and had rigidity in his movements.

         To address his challenges, the foster mother obtained services through Tennessee's Early Intervention System. Mac saw an occupational therapist and physical therapist, and his movement has improved since participating in hydrotherapy.

         Despite the challenges, the foster mother testified that Mac was improving and bonding with her family. She described Mac as "very smart, very quick." The foster mother has two other children, and according to the foster mother, her children interact with Mac on a daily basis and "sing to him and play with him." The foster mother expressed a desire to adopt Mac.

         According to Father, he had his life under control until he was arrested in 2014 while on parole. The new charge sent him back to prison, preventing him from attending Mac's birth. After Father's release from prison the following January, he moved in with Mother. He never notified the case manager of his whereabouts because he was "distraught" and "angry" after missing the birth of his child and being "wrongly accused." He claimed the charge that sent him to prison around the time of Mac's birth was later "thrown out."

         Father received social security disability payments based on a mental health diagnosis and was on medication to treat depression. He admitted to a prescription drug addiction. Although Father agreed that he had mental health and substance abuse issues, he claimed that he had been treated for them. Father asserted that, in 2014 before Mac's birth, he was evaluated and treated at the Helen Ross McNabb Center for mental health and substance abuse and completed a twelve-step program at Steps House. Father also claimed that he ...

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