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In re A.B.

Court of Appeals of Tennessee, Nashville

January 24, 2017

IN RE A.B., [1] ET AL.

          Assigned on Briefs December 2, 2016

         Appeal from the Chancery Court for Maury County No. A-049-14 Robert L. Jones, Judge

         Father and stepmother petitioned to terminate the parental rights of mother to her two children. We have determined that the petitioners proved by clear and convincing evidence that mother's actions prior to her incarceration exhibited wanton disregard for the welfare of the children and that it is in the best interest of the children for mother's parental rights to be terminated.

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

          Kori Bledsoe Jones, Columbia, Tennessee, for the appellant, Ashley M.H.

          Ronald G. Freemon, Columbia, Tennessee, for the appellees, R.D.B. and Amy E.B.

          Andy D. Bennett, J., delivered the opinion of the court, in which Charles D. Susano, Jr., J., and J. Steven Stafford, P.J., W.S., joined.

          OPINION

          ANDY D. BENNETT, JUDGE

         Factual and Procedural Background

         R.D.B. ("Father") and Ashley M.H. ("Mother") are the biological parents of A.B. and R.B. ("the children"). Father is now married to Amy E.B. ("Stepmother"). In December 2014, Father and Stepmother ("the petitioners") filed a petition to terminate the parental rights of Mother ("the respondent") and for the adoption of the children by Stepmother in the Maury County chancery court.[2] According to the petition, the children had been in Father's custody since February 2013 pursuant to an order of the Maury County juvenile court, and Mother was currently incarcerated in the Maury County jail. The trial court appointed a guardian ad litem ("GAL") to represent the interests of the children in January 2015.

         Father and Stepmother were permitted to file an amended petition to terminate in March 2015 and to add the ground for termination at issue in this appeal. They alleged that Mother had abandoned the children by engaging in conduct prior to incarceration that exhibited a wanton disregard for the welfare of the children. See Tenn. Code Ann. § 36-1-102(1)(A)(iv). The case was heard on May 4 and 5, 2016. The sole basis for termination argued at trial was abandonment by wanton disregard.

         Evidence at the Hearing

         The petitioners' first witness was Mother. She testified that she and Father were in a relationship, off and on, from 2007 until 2012, during which time the two children were born (in July 2008 and March 2011). By May 2012, when the relationship had ended, Mother and Father alternated custody on a week-on/week-off basis.

         Mother acknowledged that, in January 2010, she pled guilty in general sessions court to theft of merchandise in Walmart; she was placed on probation and told to stay out of the store. A few months later, she was charged in circuit court with possession of scheduled drugs for resale and was sentenced to three years' probation at thirty percent. In December 2011, Mother was charged with a first offense DUI, to which she pled guilty; that charge was tied in with her other charges to run concurrently with her three-year sentence. As a result of the DUI offense, Mother received a forty-five-day sentence for violation of probation, and she was only required to serve half of that sentence. Mother testified that, while she was incarcerated, the children stayed with her parents and with Father's parents because he was also incarcerated at that time.

         In late November 2012, Mother called Father in the middle of the night saying that she had been threatened by someone and that he needed to keep the children. She left Columbia, Tennessee on December 5 and went to Memphis. Mother testified that her reason for going to Memphis was that, beginning in October 2012, she had gotten involved with a man named Glenn Miller and that "he had did something and I was in fear." Their relationship ended on December 12, 2012, when Mother went to jail in Davidson County, Tennessee, charged with felony possession of a firearm, driving on a suspended license, and alteration of a serial number. Mother was erroneously released from jail in Davidson County in July 2013; she was still supposed to be incarcerated in Maury County on violations of probation. Mother turned herself in in Maury County in August 2013 and was incarcerated there until December 4, 2014.

         Mother admitted to having a history of drug abuse, including the use of drugs (marijuana, cocaine, opiates, and Xanax) since her release from jail in 2014. She testified that, at the time of the hearing, it had been a month since she had used drugs. Mother admitted that, when she took a drug screen after the filing of the petition, she failed for marijuana.

         Mother testified about her involvement with Mr. Miller. Shortly after their relationship began, Mother realized that he was in a gang and was engaged in some activity that scared her. Mr. Miller had a gun that did not belong to him. The two of them went to Memphis for a few days because they were being threatened. On the way back to Nashville, they were pulled over by the police. The gun was in the car. Mother further testified:

Q. Can you tell me what happened when you were pulled over on your way back from Memphis?
A. When we got pulled over, the cop asked what our names was and ran his name and it came back that he had a warrant down here so they automatically handcuffed him, and me being scared, being my car, the gun was in my car, I just-I kind of panicked and I put it on my person.
Q. Put what on your person?
A. The gun.
Q. Was the gun yours?
A. No.
Q. Why did you put it on your person?
A. Because at that time, I didn't think that-I didn't think that I was going to get in any kind of trouble at all. I really wasn't thinking at all.
Q. So were you trying to keep yourself out of trouble.
A. Yes. Yes.
Q. Do you see in retrospect that was a bad idea?
A. Yes.
Q. Did the officer ask you or tell you he was going to search?
A. Yes. He told me he was going to search and did I have anything on me or in my car that he needed to know about.
Q. And what did you do at that time?
A. I told him yes, and he asked me what it was, and I told him, and he asked where it was, and I showed him, and he ...

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