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In re Lynx C.

Court of Appeals of Tennessee, Knoxville

December 20, 2016

In re LYNX C.

          Assigned on Briefs December 2, 2016

         Appeal from the Juvenile Court for Knox County No. 62197 Timothy E. Irwin, Judge

         This appeal involves the termination of a mother's parental rights. The Tennessee Department of Children's Services ("DCS") removed the child at issue from the mother's home prior to his first birthday. Four months later, DCS filed a petition to terminate the mother's parental rights. The juvenile court found clear and convincing evidence of two grounds for termination and that termination of the mother's parental rights was in the child's best interest. We, however, conclude that DCS did not prove by clear and convincing evidence that the mother abandoned the child by willful failure to support. Because the record contains clear and convincing evidence of the remaining ground- abandonment by willful failure to visit-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.

          Mary L. Ward, Knoxville, Tennessee, for the appellant, Chivas K.

          Herbert H. Slatery III, Attorney General and Reporter, and M. Cameron Himes, 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

         Chivas K. ("Mother") and Jonathan C. ("Father") are the biological parents of Lynx C., born in November 2014. At birth, Lynx was diagnosed with Neonatal Abstinence Syndrome, a medical condition caused by exposure to addictive opiate drugs while in utero. Lynx spent 28 days in the neonatal intensive care unit while being treated for withdrawal symptoms. Because Mother had complied with a Suboxone[1] program during her pregnancy, Lynx left the hospital in Mother's care.

         Due to his condition, multiple follow-up appointments with a pediatrician were scheduled for Lynx; however, Mother did not keep the appointments. By October 2015, DCS received word that Lynx had missed four scheduled appointments with his pediatrician without explanation and that Mother had cancelled ten additional appointments. Following the report, DCS investigators attempted, unsuccessfully, to contact Mother and Lynx. As a result, DCS petitioned the Juvenile Court of Knox County, Tennessee for an ex parte order allowing DCS to enter Mother's home and conduct an investigation into the child's circumstances.

         The court granted the ex parte protective order finding probable cause to believe Lynx was dependent and neglected due to medical neglect. DCS then removed the child from Mother's home on November 10, 2015, just before his first birthday. Mother was given a copy of the protective order and notice of the preliminary hearing two days later. That same day, DCS filed a petition in the Juvenile Court of Knox County, Tennessee to declare the child dependent and neglected and for emergency temporary legal custody. Both Mother and Father failed to appear at the preliminary hearing on the matter. On January 26, 2016, the juvenile court heard the petition, and on March 4, 2016, the court issued a final order adjudicating Lynx dependent and neglected.

         On March 21, 2016, DCS filed a petition to terminate Mother's parental rights to Lynx.[2] DCS alleged three grounds for termination, including abandonment by willful failure to support, by willful failure to visit, and by failure to provide a suitable home. The juvenile court held a hearing on the petition on July 26, 2016. Mother, Father, the DCS caseworker assigned to Lynx's case, and the child's foster parent testified.

         The DCS caseworker testified that, following the child's removal, she attempted to locate Mother for months to no avail. Despite DCS efforts, Mother did not contact the caseworker until February 17, 2016, over three months after Lynx was removed from her home. That day, Mother left the caseworker a voice message asking to set up a visit with Lynx, but when the caseworker attempted to return Mother's call, she could not be reached.

         The caseworker testified that she attempted to contact mother at least three or four times without response in the days following Mother's call. Two weeks later, on March 3, 2016, Mother contacted DCS for the second time. Mother spoke with the caseworker and asked for guidance on regaining custody. The DCS caseworker testified that she reminded Mother of the responsibilities in the permanency plan by phone and provided her contact information to obtain an alcohol and drug assessment. Mother assured the caseworker that she would call back the following Monday to set up a meeting with DCS, but according to the caseworker, Mother made no further contact with DCS until March 29, 2016, after she was served with the petition to terminate her parental rights.

         The DCS caseworker further testified that Mother failed to attend a scheduled appointment with DCS in April 2016, after which DCS was again unable to locate Mother for a time. On May 2, 2016, Mother showed up unexpectedly at DCS's offices to speak with the caseworker. Mother indicated that she had received the caseworker's messages and that she was still living in the same apartment in Knoxville, Tennessee where she had resided since Lynx's removal. According to the caseworker, Mother visited her child for the first time on July 1, 2016. She was permitted two additional visits before the hearing on the petition.

         Mother also offered testimony concerning her failure to keep in contact with DCS. She testified that she did not attempt to contact DCS before February 2016 because she had relapsed on opiates after Lynx's removal from her home. She explained that she was afraid for DCS to learn of her relapse. Prior to the present case involving Lynx, DCS removed Mother's older son from her care. Though Mother is permitted to visit her first child, he is in the custody of her mother-the child's maternal grandmother. Mother expressed her fear that she would lose her second child as well if DCS knew that she had relapsed. Mother claimed that she participated in drug treatment in April 2016, but she failed to provide documentation of such treatment. She also failed to inform DCS of the claimed treatment.

         Regarding her employment, Mother testified that she worked at a Pilot convenience store from January 2016 to April 2016. According to Mother, she was unemployed at the time of the hearing but actively looking for work. The record does ...

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