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In re Jakob O.

Court of Appeals of Tennessee, Nashville

December 15, 2016

IN RE JAKOB O., ET AL.

          Session September 20, 2016

         Appeal from the Juvenile Court for Rutherford County No. TC1674T Donna Scott Davenport, Judge

         Upon petition of the Tennessee Department of Children's Services ("the Department"), the trial court terminated the parental rights of Mother. We reverse the trial court's determination that Mother willfully failed to support her children prior to her incarceration and its determination that she failed to substantially comply with the requirements of the family permanency plans created in this case. However, clear and convincing evidence supports the remaining grounds for termination relied upon by the trial court, as well as the trial court's determination that the termination of Mother's parental rights is in the children's best interest. Accordingly, we affirm the termination of Mother's parental rights.

         Tenn. R. App. P. 3 Appeal of Right; Judgment of the Juvenile Court Reversed in Part, Affirmed in Part and Remanded

          Carl Moore, Murfreesboro, Tennessee, for the appellant, Jessica K.

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

          Arnold B. Goldin, J., delivered the opinion of the Court, in which Richard H. Dinkins and Kenny Armstrong, JJ., joined.

          OPINION

          ARNOLD B. GOLDIN, JUDGE

         BACKGROUND AND PROCEDURAL HISTORY

         In this appeal, we address the termination of parental rights of Jessica K. ("Mother") to her two children, Jakob O. and Lukas O.[1] Jakob was born in June 2003;

          Lukas was born several years later in August 2010. Although the children's father, Bobby O. ("Father"), resided with Mother off-and-on over the years, the two never married.

         The children first came into the custody of the Department in 2010 shortly after Lukas tested positive for drugs at his birth. Although Father was not living with Mother at this time, he later moved in with her in the spring of 2011. By September 2011, however, Father had moved out from Mother's home following a domestic violence episode between them. The children were eventually returned to Mother in December 2011 at the conclusion of a trial home pass, but by order of the Rutherford County Juvenile Court, Father's visitation with the children was restricted to four hours per month with a supervising agency.

         Despite the restriction imposed on Father's visitation with the children, Mother allowed Father to move back in with her and the children sometime around August 2012. A few short months later, in October 2012, the children were removed from Mother's home a second time after the Department received a referral with "allegations of drug exposed child, environmental neglect[, ] and educational neglect." In light of its investigation into the children's circumstances, the Department petitioned to have the children declared dependent and neglected.

         In an affidavit filed in support of the Department's petition to declare the children dependent and neglected, a Department employee outlined the specific risks that necessitated the children's removal from Mother's home:

At the time of the current referral, DCS arrived at the home to address concerns listed in this referral. CPSA Jones was advised by [Father] that Jakob had missed school due to illness. Jakob had been taken to the doctor by [Mother] at this time. [Father] was drug screened at that time and was positive for Benzoidiazapine but did not have a prescription. [Father] denied the use of any medications other than Advil over the counter. [Mother] and Jakob returned to the home. [Mother] was drug screened and was negative for all substances. [Mother] was screened a second time after Jakob admitted that he provided urine for his mother. That drug screen also yielded negative results. A third drug screen was administered by law enforcement to [Mother] which yielded positive results for THC. Law enforcement was present at this time and contacted the codes departments. Dennis Blair, Fire Inspector for City of Lavergne Codes Department came to the home . . . and deemed the home uninhabitable due to the condition of the home. There were dishes in the sink growing mold and bacteria. Old food was found in the children's bedrooms and there were flies and knats [sic] throughout the home. The carpet was filthy with what appeared to be animal feces and there was a strong unpleasant odor in the home. The outside of the home had several trash bags that appeared to have been there for some time. There was wood and nails lying at the entrance of the home. There were two containers outside the garage and according to [Father], they were filled with gasoline.

         On October 24, 2012, the Juvenile Court entered a protective custody order placing the children in the temporary custody of the Department.[2] A hearing on the Department's dependency and neglect petition later occurred on February 13, 2013. Following the hearing, by order entered on March 6, 2013, the Juvenile Court found the children dependent and neglected. In pertinent part, the Juvenile Court's March 6 order stated as follows: "(1) Mother exposed the Children to environmental neglect in her home; (2) that the home was in such condition of neglect that it was condemned by the local codes department; (3) that the neglect found in the home was of such a degree and was unsafe that the Mother was arrested for Reckless Endangerment; and (4) that the oldest Child . . . was educationally neglected."

         Following the children's removal from Mother's home in October 2012, a number of family permanency plans were created. The first of these plans was created on November 8, 2012. Among other things, the November 8, 2012 permanency plan directed Mother to: "abide by the rules of probation, " refrain from the use of alcohol or drugs, participate in random drug screens and pill counts, participate in "a non-self reporting clinical assessment with an A&D and parenting component and follow all recommendations, " show proof of legal means of income, provide the Department with a budget, and provide the Department with childcare and transportation plans. The record shows that on the same day that the first permanency plan was created, Mother received a copy of the "Criteria & Procedures for Termination of Parental Rights."

         The second permanency plan was created on May 20, 2013. Save for a few additional requirements, Mother's requirements under the second permanency plan were substantially similar to what was required of her under the first plan. According to the second permanency plan, Mother's alcohol and drug assessment, which had been completed in December 2012, recommended that Mother receive counseling to address her grief, participate in relationship counseling with Father, and receive homemaker services. Following the creation of the second permanency plan, additional permanency plans were created on November 18, 2013, May 27, 2014, and December 3, 2014. Mother's requirements under these latter three plans were virtually the same as those established under the first two permanency plans.

         On January 10, 2014, the Department filed a petition to terminate Mother's parental rights in the Rutherford County Juvenile Court.[3] At the time that the petition was filed, Mother was incarcerated for a violation of probation. According to Mother, she had been on probation for two separate charges: a DUI offense and reckless endangerment. The reckless endangerment charge specifically stemmed from the condition of Mother's home at the time her children were removed in October 2012. In support of its request to terminate Mother's parental rights, the Department averred that the following grounds for termination existed: (1) abandonment by failure to visit, Tenn. Code Ann. § 36-1-102(1)(A)(i); (2) abandonment by failure to support, Tenn. Code Ann. § 36-1-102(1)(A)(i); (3) abandonment by an incarcerated parent for failure to visit, Tenn. Code Ann. § 36-1-102(1)(A)(iv); (4) abandonment by an incarcerated parent for failure to support, Tenn. Code Ann. § 36-1-102(1)(A)(iv); (5) abandonment by engaging in conduct prior to incarceration that exhibited a wanton disregard for the children's welfare, Tenn. Code Ann. § 36-1-102(1)(A)(iv); (6) abandonment by failure to provide a suitable home, Tenn. Code Ann. § 36-1-102(1)(A)(ii); (7) substantial noncompliance with the permanency plan, Tenn. Code Ann. § 36-1-113(g)(2); and (8) persistent conditions, Tenn. Code Ann. § 36-1-113(g)(3).

         The trial in the case took place over several dates, beginning on April 23, 2015 and concluding on November 10, 2015. On December 1, 2015, the trial court issued an oral ruling from the bench and determined that Mother's parental rights should be terminated. A written order memorializing this ruling was later entered by the trial court on February 5, 2016. Pursuant to its February 5 written order, the trial court concluded that Mother's parental rights should be terminated on six of the eight grounds asserted against Mother in the Department's petition. Specifically, the trial court concluded that: (1) Mother had abandoned the children by failing to visit them prior to incarceration; (2) Mother had abandoned the children by failing to support them prior to incarceration; (3) Mother had abandoned the children by engaging in conduct prior to incarceration that exhibited a wanton disregard for the children's welfare; (4) Mother had abandoned the children by failing to establish a suitable home; (5) a persistence of conditions existed that prevented the children's return to Mother; and (6) Mother had failed to substantially comply with the permanency plans. The trial court also concluded that the termination of Mother's parental rights would be in the children's best interests. Mother thereafter filed a timely notice of appeal.

          ISSUES

         In her brief on appeal, Mother raises seven issues for our review, which we have slightly restated as follow:

1. Whether the trial court erred in finding abandonment by failure to visit prior to incarceration.
2. Whether the trial court erred in finding abandonment by failure to support prior to incarceration.
3. Whether the trial court erred in finding abandonment by wanton disregard.
4. Whether the trial court erred in finding abandonment by failure to provide a suitable home.
5. Whether the trial court erred in finding persistence of conditions.
6. Whether the trial court erred in finding substantial noncompliance with the permanency plans.
7. Whether the trial court erred in finding that termination of Mother's parental rights is in the children's best interest.

         We note that even if the issues raised in Mother's brief had not been this comprehensive, our review on appeal would not be limited. In order to help "ensure that fundamental parental rights are not terminated except upon sufficient proof, proper findings, and fundamentally fair procedures, " we are required to review the trial court's findings as to each ground for termination and as to whether termination is in the child's best interest. See In re Carrington H., 483 S.W.3d 507, 525-26 (Tenn. 2016) ("[I]n an appeal from an order terminating parental rights the Court of Appeals must review the trial court's findings as to each ground for termination and as to whether termination is in the child's best interests, regardless of whether the parent challenges these findings on appeal.").

         STANDARD OF REVIEW

         "A biological parent's right to the care and custody of his or her child is among the oldest of the judicially recognized liberty interests protected by the due process clauses of the federal and state constitutions." In re M.L.P., 228 S.W.3d 139, 142 (Tenn. Ct. App. 2007) (citations omitted). "Although this right is fundamental and superior to claims of other persons and the government, it is not absolute." In re J.C.D., 254 S.W.3d 432, 437 (Tenn. Ct. App. 2007) (citation omitted). "It continues without interruption only as long as a parent has not relinquished it, abandoned it, or engaged in conduct requiring its limitation or termination." In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004) (citations omitted). In Tennessee, proceedings to terminate parental rights are governed by statute. State Dep't of Children's Servs. v. A.M.H., 198 S.W.3d 757, 761 (Tenn. Ct. App. 2006). Pursuant to the Tennessee Code, parties who have standing to seek the termination of a parent's parental rights must prove two things. They must first prove at least one of the statutory grounds for termination. In re J.C.D., 254 S.W.3d at 438 (citing Tenn. Code Ann. § 36-1-113(c)(1)). Then, they must prove that termination of parental rights is in the child's best interests. Id. (citing Tenn. Code Ann. § 36-1-113(c)(2)).

         Because the decision to terminate a parent's parental rights has "profound consequences, " trial courts must apply a higher standard of proof in deciding termination cases. In re M.L.P., 228 S.W.3d at 143. "To terminate parental rights, a court must determine that clear and convincing evidence proves not only that statutory grounds exist but also that termination is in the child's best interest." In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002) (citing Tenn. Code Ann. § 36-1-113(c)). "Clear and convincing evidence is evidence that eliminates any substantial doubt and that produces in the fact-finder's mind a firm conviction as to the truth." In re M.A.B., No. W2007-00453-COA-R3-PT, 2007 WL 2353158, at *2 (Tenn. Ct. App. Aug. 20, 2007) (citation omitted). This heightened burden of proof "minimizes the risk of erroneous decisions." In re M.L.P., 228 S.W.3d at 143 (citations omitted).

         Due to the heightened burden of proof required under the statute, we must adapt our customary standard of review. In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005). "First, we must review the trial court's specific findings of fact de novo in accordance with Tenn. R. App. P. 13(d)." In re M.J.B., 140 S.W.3d at 654. "Second, we must determine whether the facts, either as found by the trial court or as supported by the preponderance of the evidence, clearly and convincingly establish the elements required to terminate a biological parent's parental rights." Id. (citations omitted).

         DISCUSSION

         Consistent with the Tennessee Supreme Court's direction in In re Carrington H., we are required to review the trial court's findings as to each ground for termination. See In re Carrington H., 483 S.W.3d at 525-26. Accordingly, in the analysis that follows, we review each ground for termination relied upon by the trial court separately. However, notwithstanding the comprehensive nature of our review, we ultimately need only find that one ground for termination was established in order to uphold the trial court's decision. In re Valentine, 79 S.W.3d at 546.

         Abandonment

         The first ground for termination listed in our termination statute, and the most frequently relied on, is abandonment. In re Audrey S., 182 S.W.3d at 862 (citations omitted). The acts that constitute abandonment are outlined in Tennessee Code Annotated section 36-1-102, which provides five alternative definitions. In this case, the trial court determined that Mother's actions satisfied four bases for abandonment included among the statutory definitions. We address each of its conclusions regarding Mother's abandonment in turn.

         Abandonment Under Tenn. Code Ann. § 36-1-102(1)(A)(iv): Abandonment by Willful Failure to Visit, Willful Failure to Support, and Wanton Disregard

         The first three bases of abandonment relied upon by the trial court are contained in the definition of abandonment outlined at Tennessee Code Annotated section 36-1-102(1)(A)(iv). Pursuant to that statutory definition, a parent's parental rights may be terminated when:

A parent or guardian is incarcerated at the time of the institution of an action or proceeding to declare a child to be an abandoned child, or the parent or guardian has been incarcerated during all or part of the four (4) months immediately preceding the institution of such action or proceeding, and either has willfully failed to visit or has willfully failed to support or has willfully failed to make reasonable payments toward the support of the child for four (4) consecutive months immediately preceding such parent's or guardian's incarceration, or the parent or guardian has engaged in conduct prior to incarceration that exhibits a wanton disregard for the welfare of the child[.]

Tenn. Code Ann. § 36-1-102(1)(A)(iv).[4]

         We have previously acknowledged that the above statute contains "two distinct tests for abandonment" both of which "apply only if a parent is incarcerated at or near the time of the filing of the termination petition." In re Audrey S., 182 S.W.3d at 865. The first test, which itself contains alternative bases for abandonment, "asks whether the parent 'has willfully failed to visit[, ] . . . support[, ] or . . . make reasonable payments toward the support of the child for four (4) consecutive months immediately preceding such parent's . . . incarceration.'" Id. (citing Tenn. Code Ann. § 36-1-102(1)(A)(iv)). Although this test tracks the language of the statutory definition of abandonment under Tennessee Code Annotated § 36-1-102(1)(A)(i), it "shifts the ...


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