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In re Yariel S.

Court of Appeals of Tennessee, Knoxville

January 6, 2017

In Re YARIEL S., et al.[1]

          Assigned on Briefs November 1, 2016

         Appeal from the Juvenile Court for Knox County No. 78279 Timothy E. Irwin, Judge

         This appeal involves the termination of a mother's parental rights to her four minor children. Following a bench trial, the trial court found that clear and convincing evidence existed to support the termination of her rights to all four children on the statutory grounds of abandonment for failure to provide a suitable home, the persistence of conditions which led to removal, and substantial noncompliance with the requirements of the permanency plan. The court also found that clear and convincing evidence existed to support the termination of her rights to the youngest child on the statutory ground of severe child abuse. The court further found that termination was in the best interest of the children. The mother appeals. We reverse the trial court on its finding of abandonment for failure to provide a suitable home. On all other findings, we affirm the trial court's rulings.

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

          Gregory E. Bennett, Seymour, Tennessee, for the appellant, Kayla N. S.

          Herbert H. Slatery, III, Attorney General and Reporter, and W. Derek Green, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee, Department of Children's Services.

          John W. McClarty, J., delivered the opinion of the Court, in which Frank G. Clement, P.J., M.S., and Kenny Armstrong, J., joined.

          OPINION

          JOHN W. McCLARTY, JUDGE.

         I. BACKGROUND

         Yariel S., Yaron S., Yariyana L., and YariAsia L. were born out of wedlock to Kayla N. S. ("Mother") and Yaron D. L. ("Father") in July 2011, January 2010, February 2013, and December 2014, respectively. Father was not listed on Yariel or Yaron's birth certificate; however, he held himself out in the community as the father. Mother also confirmed his identity as the father. The Tennessee Department of Children's Services ("DCS") first met with Mother after she tested positive for benzodiazepines and marijuana while pregnant with YariAsia in October 2014. Despite Mother's drug use while pregnant, both YariAsia and Mother were negative for drugs on the day of YariAsia's birth. At that time, Mother and Father (collectively "the Parents") agreed to cooperate with services and receive treatment for substance abuse.

         Thereafter, Mother self-reported drug use in January 2015 and tested positive for drug use in February, March, and June 2015. While at a child and family team meeting in May 2015, Mother agreed to attend an appointment at a drug treatment center the next day. Mother failed to attend the scheduled appointment. DCS petitioned for temporary legal custody of the Children on June 4, 2015. The Children were removed and placed into foster care, where they have remained since that time. They were later adjudicated as dependent and neglected by agreed order due to Mother's substance abuse issues and mental health issues, Father's substance abuse issues, and the Parents' failure to provide appropriate care and supervision of the Children.

         An initial permanency plan, dated June 25, 2015, was crafted by DCS without Mother's participation. Mother, who refused to discuss the requirements or sign the plan, was given a copy of the plan. Pursuant to the plan, Mother was required to (1) complete a mental health assessment and follow recommendations; (2) complete an alcohol and drug assessment, follow recommendations, and submit to drug screens; (3) obtain and maintain suitable housing free from environmental hazards, domestic violence, drug abuse, or other risks; (4) maintain regular visitation; (5) participate in parent education through therapeutic visitation; (6) obtain and maintain a legal source of income; (7) remit child support; and (8) maintain contact with DCS. Mother later signed a Criteria and Procedure for Termination of Parental Rights on July 10, 2015, indicating that she had received a copy of the form and had been given an explanation of its contents.

         On March 15, 2016, DCS sought termination of Mother's parental rights to the Children based upon the following grounds: (1) abandonment for failure to provide a suitable home; (2) the persistence of conditions which led to removal; and (3) substantial noncompliance with the requirements of the permanency plans. DCS also pursued termination of Mother's parental rights to YariAsia on the additional statutory ground of severe child abuse. DCS claimed that termination of Mother's rights was in the best interest of the Children.[2] The hearing on the termination petition was held on May 3, 2016. Mother failed to appear or defend her rights through counsel, despite receiving notice of the hearing.

         Sarah Brock testified that DCS became involved when Mother tested positive for drugs and admitted drug use while pregnant with YariAsia in October 2014. She provided that Mother was referred to CenterPointe for drug treatment and completed the program in November 2014. She stated that Mother agreed to complete several requirements set forth in a non-custodial permanency plan but that the Children were later removed based upon her non-compliance and failure of several drug screens.

         Ms. Brock provided that she was not appointed as the case manager for the Children until they were removed in June 2015. She recalled that Mother completed mental health and alcohol and drug assessments on September 8, 2015, but failed to follow the recommendations from the assessments. She provided that Mother failed to attend an intensive outpatient treatment program and later tested positive for marijuana and oxycodone on September 28, 2015, and morphine on October 12, 2015. She completed several referrals for treatment for Mother and reminded her to call the different facilities, but Mother failed to attend as agreed. She even arranged transportation after Mother indicated that transportation was a barrier to her cooperation.

         Ms. Brock claimed that Mother appeared intoxicated during visitation and at meetings. She noted that Mother visited regularly through December 2015 but had not attended a visitation since February 3, 2016. She believed that Mother currently lived with her grandfather in an unstable living situation. She recalled meeting Mother's grandfather during an unannounced visit on December 9, 2015. She described him as "agitated" and "angry" and stated that he slurred his words, was unsteady on his feet, and opened a beer while speaking with her and her team leader. She provided that he also threatened to get a gun and kill Father because he wanted him out of the house. She claimed that Mother had not updated her address or given any indication that she moved from grandfather's house since that time. She asserted that Mother also never identified any source of income and failed to maintain contact with her.

         Ms. Brock testified that the Children were doing well and had been placed together in an adoptive home. Foster Father confirmed his desire to adopt the Children should they become available. He claimed that the Children had adjusted well.

         Following the hearing, the trial court found clear and convincing evidence to support termination of Mother's parental rights to the Children based upon her abandonment for failure to provide a suitable home, the persistence of conditions which led to removal, and her substantial noncompliance with the requirements of the permanency plan. The court also found clear and convincing evidence to support termination of Mother's parental rights to YariAsia based upon a finding of severe child abuse. The court further found clear and convincing evidence that termination of Mother's parental rights was in the best interest of the Children. This appeal followed.

         II. ISSUES

We consolidate and restate the issues raised on appeal as follows:
A. Whether reversal of the trial court's judgment is required for lack of personal jurisdiction.
B. Whether reversal of the trial court's judgment is required because the court failed to appoint counsel on Mother's behalf.
C. Whether the trial court erred by failing to comply with the procedural rules for entry of a default judgment.
D. Whether clear and convincing evidence supports the court's finding of statutory grounds in support of its termination decision.
E. Whether clear and convincing evidence supports the court's finding that termination was in the best interest of the Children pursuant to Tennessee Code Annotated section 36-1-113(i).

         III. STANDARD OF REVIEW

         Parents have a fundamental right to the care, custody, and control of their children. Stanley v. Illinois, 405 U.S. 645 (1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988). This right "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.J.B., 140 S.W.3d 643, 652-53 (Tenn. Ct. App. 2004). "Termination of a person's rights as a parent is a grave and final decision, irrevocably altering the lives of the parent and child involved and 'severing forever all legal rights and obligations' of the parent." Means v. Ashby, 130 S.W.3d 48, 54 (Tenn. Ct. App. 2003) (quoting Tenn. Code Ann. § 36-1-113(I)(1)). "'[F]ew consequences of judicial action are so grave as the severance of natural family ties.'" M.L.B. v. S.L.J., 519 U.S. 102, 119 (1996) (quoting Santosky v. Kramer, 455 U.S. 745, 787 (1982)).

         While parental rights are superior to the claims of other persons and the government, they are not absolute and may be terminated upon appropriate statutory grounds. See Blair v. Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002). Due process requires clear and convincing evidence of the existence of the grounds for termination of the parent-child relationship. In re Drinnon, 776 S.W.2d at 97. A parent's rights may be terminated only upon

(1) [a] finding by the court by clear and convincing evidence that the grounds for termination of parental or guardianship rights have been established; and
(2) [t]hat termination of the parent's or guardian's rights is in the best interest [] of the child.

Tenn. Code Ann. § 36-1-113(c). "[A] court must determine that clear and convincing evidence proves not only that statutory grounds exist [for the termination] but also that termination is in the child's best interest." In re Valentine,79 S.W.3d 539, 546 (Tenn. 2002). The existence of at least one statutory basis for termination of parental rights will support the trial court's decision to terminate those rights. In re C.W.W., 37 S.W.3d 467, 473 ...


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