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In re Casey C.

Court of Appeals of Tennessee, Nashville

December 19, 2016

IN RE CASEY C., ET AL.

          Assigned on Briefs November 1, 2016

         Appeal from the Juvenile Court for Montgomery County No. 15-316, 15-317, 15-318 Tim Barnes, Judge.

         This is a termination of parental rights case. Mother/Appellant appeals the termination of her parental rights to three minor children on the grounds of: (1) abandonment by failure to provide a suitable home; (2) abandonment by willful failure to support; and (3) persistence of the conditions that led to the children's removal from Appellant's custody. The trial court also found, by clear and convincing evidence, that termination of Appellant's parental rights is in the children's best interests. Discerning no error, we affirm.

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

          Gregory D. Smith, Clarksville, Tennessee, for the appellant, Lisa C.

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

          Arnold B. Goldin, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and W. Neal McBrayer, J., joined.

          OPINION

          ARNOLD B. GOLDIN, JUDGE.

         I. Background

         The three minor children at issue in this case were born to Lisa C. ("Mother" or "Appellant") and Chad C. ("Father").[1] Casey C. was born in July of 2004;[2] Corey C. was born in December of 2006, and Leaya C. (together with Casey C. and Corey C., the "Children") was born in July of 2008.

         On or about October 28, 2010, DCS received a referral alleging environmental neglect. On October 28, 2010, Child Protective Services ("CPS") visited the home and found that the family had no electricity and inadequate food. On November 1, 2010, DCS filed a petition for temporary legal custody and removal of the Children based on allegations of drug exposure and environmental neglect. In its petition, DCS specifically averred that both parents were "on drugs using crack. The family's electricity is cut off. . . . The parents have been asking for food and food stamps." On the same day, the trial court entered a protective custody order removing the Children from the home and awarding temporary custody to DCS.

         On July 16, 2012, nunc pro tunc to October 27, 2011, DCS filed a notice and motion for trial home visit seeking a trial home visit between Mother, Father and the Children. The trial court granted the motion and approved a ninety-day trial home visit. On January 19, 2012, the trial court entered an order stating that the trial home visit would self-execute on January 25, 2012, when complete care, custody and control of the Children would be restored to Mother and Father. Unfortunately, the trial home visit did not lead to reunification.

         On July 19, 2013, DCS filed a petition for dependency and neglect and sought a protective order prohibiting Mother from allowing the Children contact with the Father. In its dependency and neglect petition, DCS alleged, in relevant part, that, on July 13, 2013, DCS had contacted Mother by phone in furtherance of its investigation. The CPS investigator noted that Mother "was slurring her words, and was unable to answer [the CPS investigator's] questions." Based on the phone conversation, CPS proceeded to a home visit. CPS investigators reported that, during the home visit, they "observed that [Mother] was clearly intoxicated. [Mother] continued to have slurred speech and was not able to maintain balance." CPS investigators further observed that Mother "was not able to walk through the home without using the walls and furniture to prevent her from falling." CPS investigators asked Mother about her intoxicated condition, and Mother replied that "she had two drinks today and that was all." CPS investigators also asked whether Mother had taken any prescription medication, to which she replied that "she had not taken any of her pain medication today."[3] However, when CPS investigators performed a pill count, they observed that Mother

provided CPS [investigators] with three medications Hydrocodone, Carisoprorol, and Alprazolam. All three of the prescriptions were filled on July 12, 2013 and there were 56 pills provided for each prescription. The instructions on each were to take four pills per day. CPS [investigators] . . . noted that there were seven Carisoprorol left in the bottle, which indicates that 49 pills were taken within the previous four days. CPS [investigators] observed the prescription of Hydrocodone, there were 34 pills remaining in the bottle. If taken as prescribed, there should have been 40 pills remaining in the bottle. CPS [investigators] observed the Alprazolam prescription; there were 50 remaining which indicates that [Mother] has taken less than prescribed.

         Mother explained the prescription discrepancy by stating that Father had "broken into the family home and stole[n] her medication."

         In response to DCS's petition for dependency and neglect, Mother agreed to sign an immediate protection agreement, allowing the Children to temporarily reside with Samuel R., who was the pastor of Mother's church and a registered foster parent. In light of this agreement, DCS did not immediately move forward with its dependency and neglect / custody petition. However, in the fall of 2013, Mr. R. notified DCS that he and his wife could no longer financially support the Children. Because Mr. R. could only be compensated for foster care if the Children were in State custody, on September 26, 2013, the trial court entered a protective custody order removing the Children from Mother's custody and placing temporary custody with DCS. On November 26, 2013, the trial court entered an order adjudicating the Children to be dependent and neglected. The trial court specifically found that "the [C]hildren are dependent and neglected within the meaning of the statute base[d] on Mother's continued drug and alcohol use within the home."

         On January 26, 2015, DCS filed a petition to terminate Mother's parental rights. As grounds for termination, DCS averred: (1) abandonment by willful failure to support the Children; (2) abandonment by failure to provide a suitable home after reasonable efforts by DCS; (3) abandonment by willful failure to visit the Children; and (4) persistence of the conditions that led to the Children's removal from Mother's home. DCS also averred that termination of Mother's parental rights was in the Children's best interests. By separate orders, which were both entered on March 3, 2015, the trial court appointed a guardian ad litem to represent the Children and appointed an attorney for Mother. By order of August 20, 2015, a new attorney was appointed to represent Mother, and the case was continued to allow Mother's new attorney time to prepare for the hearing on DCS's petition to terminate parental rights.

         The trial court heard the petition to terminate parental rights on December 1 and 7, 2015. By order of April 4, 2016, the trial court found that there was clear and convincing evidence that Mother's parental rights to the Children should be terminated on the grounds of: (1) abandonment by willful failure to support; (2) abandonment by failure to provide a suitable home; and (3) persistence of the conditions that led to the Children's removal from Appellant's custody. The trial court also found, by clear and convincing evidence, that it was in the children's best interest that Mother's parental rights be terminated. Mother appeals.

         II. Issue

         The sole issue for review is whether the trial court erred in terminating Mother's parental rights.

         III. Standard of Review

         Under both the United States and Tennessee Constitutions, a parent has a fundamental right to the care, custody, and control of his or her child. Stanley v. Illinois, 405 U.S. 645, 651 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn. 1996). Thus, the state may interfere with parental rights only when a compelling interest exists. Nash-Putnam, 921 S.W.2d at 174-75 (citing Santosky v. Kramer, 455 U.S. 745 (1982)). Our termination statutes identify "those situations in which the state's interest in the welfare of a child justifies interference with a parent's constitutional rights by setting forth grounds on which termination proceedings can be brought." In re W.B., Nos. M2004-00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005) (citing Tenn. Code Ann. § 36-1-113(g)). A person seeking to terminate parental rights must prove both the existence of one of the statutory grounds for termination and that termination is in the children's best interest. Tenn. Code Ann. § 36-1-113(c); In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

         Because of the fundamental nature of the parent's rights and the grave consequences of the termination of those rights, courts must require a higher standard of proof in deciding termination cases. Santosky, 455 U.S. at 769. Accordingly, both the grounds for termination and that termination of parental rights is in the children's best interests must be established by clear and convincing evidence. Tenn. Code Ann. § 36-3-113(c)(1); In re Valentine, 79 S.W.3d at 546. Clear and convincing evidence "establishes that the truth of the facts asserted is highly probable ... and eliminates any serious or substantial doubt about the correctness of the conclusions drawn from the evidence." In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004). Such evidence "produces in a fact-finder's mind a firm belief or conviction regarding the truth of the facts sought to be established." Id. at 653.

         In light of the heightened standard of proof in termination of parental rights cases, a reviewing court must modify the customary standard of review in Tennessee Rule of Appellate Procedure 13(d). As to the trial court's findings of fact, our review is de novo with a presumption of correctness unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d). We must then determine whether the facts, as found by the trial court or as supported by the preponderance of the evidence, clearly and convincingly establish the elements necessary to terminate parental rights. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).

         IV. Grounds for Termination of Mother's Parental Rights

         As noted earlier, the trial court relied on the following statutory grounds in terminating Appellant's parental rights: (1) abandonment by willful failure to support, Tennessee Code Annotated Sections 36-1-113(g)(1) and 36-1-102(1)(A)(i); (2) abandonment by failure to establish a suitable home and lack of concern, Tennessee Code Annotated Sections 36-1-113(g)(1) and 36-1-102(1)(A)(ii); and (3) persistence of the conditions that led to the Children's removal, Tennessee Code Annotated Section 36-1-113(g)(3). Although only one ground must be proven by clear and convincing evidence in order to terminate a parent's rights, the Tennessee Supreme Court has instructed this Court to review every ground relied on by the trial court to terminate parental rights in order to prevent "unnecessary remands of cases." In re Angela E., 303 S.W.3d 240, 251 n.14 (Tenn. 2010). Accordingly, we will review all of the foregoing grounds.

         A. Reasonable Efforts

         Before addressing the specific grounds for termination of Appellant's parental rights, we note that, historically, the decision to pursue termination of parental rights on the grounds of abandonment has invoked DCS's statutory duty to make reasonable efforts to facilitate the safe return of children to the parent's home. In re R.L.F., 278 S.W.3d 305, 315 (Tenn.Ct.App.2008) (citing Tenn. Code Ann. §§ 37-1-166(b), -166(a)(2), - 166(g)(2)); see also In re Tiffany B., 228 S.W.3d 148, 151, 160 (Tenn.Ct.App.2007) (vacating a finding of abandonment, substantial noncompliance, and persistence of conditions for failure to make reasonable efforts). However, in In re Kaliyah S., 455 S.W.3d 533 (Tenn. 2015), the Tennessee Supreme Court specifically overruled "the holding of In re Tiffany B. and other cases following the holding in In re C.M.M. to the extent that the court required DCS to prove by clear and convincing evidence that it made reasonable efforts to reunify as a precondition to termination of parental rights (citations omitted)." Id. at 555 n.34. In Kaliyah, the Court specifically stated that

proof of reasonable efforts is not a precondition to termination of parental rights of a respondent parent. As with other factual findings made in connection with the best interest analysis, reasonable efforts must be proven by a preponderance of the evidence, not by clear and convincing evidence. In re Audrey S., 182 S.W.3d at 861. After making the underlying factual findings, the trial court should then consider the combined weight of those facts to determine whether they amount to clear and convincing evidence that the termination is in the child's best interest (citations omitted).

Id. at 555.

         Nonetheless, proof of reasonable efforts is specifically required by statute to prove the ground of abandonment by failure to provide a suitable home. Tennessee Code Annotated Section 36-1-102(1)(A)(ii)'s definition of abandonment requires DCS to make reasonable efforts to assist the parents to establish a suitable home. The statute focuses on the four month period following removal of the children from the parent's custody. In its order terminating Mother's parental rights, the trial court outlined the various efforts DCS made to assist Mother in fulfilling her obligations under the permanency plans and concluded that, during the relevant time period, "DCS made reasonable efforts to assist [Mother] to establish a suitable home for the children, but [Mother] has failed to make even minimal efforts to provide a suitable home for her children." Although Appellant did not raise an issue concerning the trial court's findings on DCS's reasonable efforts, because DCS's obligation to provide reasonable efforts is triggered by the trial court's reliance on the grounds of abandonment by failure to provide suitable housing, we have reviewed the record to determine whether the evidence preponderates in favor of the trial court's findings concerning DCS's reasonable efforts. Although Mother testified that DCS had provided no services or help to her, the record indicates otherwise. DCS caseworker, Joi Mosley, testified that DCS developed permanency plans for the Children. These plans set out tasks and goals that would help Mother regain custody of the Children. Mother testified that she understood her requirements under these plans. Of primary concern was Mother's lack of proper housing, her lack of income, and her continued drug use. To aid Mother in addressing these concerns, Ms. Mosely testified that DCS provided Mother with a list of employment opportunities and offered to provide her with transportation to any job interviews. DCS set up parenting classes and alcohol and drug treatment. However, Ms. Mosley testified that, when she would attempt to contact Mother to come in for drug screenings, Mother would often not answer the call. Ms. Mosley further stated that she attempted to assist Mother with completing the necessary forms to apply for disability, but Mother would never meet with Ms. Mosley to complete the paperwork. From the entire record, and in light of the particular facts of this case, we conclude that the evidence supports the trial court's finding that DCS has made reasonable efforts to assist Mother; however, for the reasons discussed below, it does not appear that Mother has availed herself of these opportunities.

         B. Abandonment by Willful Failure to Support

         Tennessee Code Annotated Section 36-1-113(g)(1) provides that termination of parental rights may be based upon the ground of "[a]bandonment by the parent or guardian, as defined in § 36-1-102...." Tennessee Code Annotated Section 36-1-102(1)(A)(i) defines abandonment, in relevant part, as follows:

(i) For a period of four (4) consecutive months immediately preceding the filing of a proceeding or pleading to terminate the parental rights of the parent or parents or a guardian or guardians of the child who is the subject of the petition for termination of parental rights or adoption, that a parent or parents or a guardian or guardians . . . have willfully failed to . . . ...

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