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In re Kayla B.

Court of Appeals of Tennessee, Knoxville

February 1, 2017

IN RE KAYLA B., ET AL.

          Assigned on Briefs November 1, 2016

         Appeal from the Juvenile Court for Cumberland County No. 2015-JV-5238 Larry Michael Warner, Judge

         This appeal involves the termination of a mother's parental rights to six children and a father's parental rights to three of those children. The juvenile court found clear and convincing evidence of five grounds for termination of parental rights and that termination of parental rights was in the children's best interest. We conclude that DCS did not prove abandonment by an incarcerated parent by clear and convincing evidence. Because the record contains clear and convincing evidence to support four grounds for termination, namely, abandonment by failure to provide a suitable home, substantial noncompliance with the requirements of the permanency plan, persistence of conditions, and severe child abuse, and that termination is in the best interest of the children, we affirm.

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

          Cynthia Fields Davis, Crossville, Tennessee, for the appellant, Brandie V.

          Jeffrey A. Vires, Crossville, Tennessee, for the appellant, Allen S.

          Herbert H. Slatery III, Attorney General and Reporter, and Brian A. Pierce, 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.

          OPINION

          W. NEAL McBRAYER, JUDGE

         I. Factual and Procedural Background

         Brandie V. ("Mother") is the mother of six children, Kayla, Jaden, Ashton, Isabella, Jace, and Korie. The children range in age from three to twelve. Allen S. ("Father") is the father of the three youngest children, Isabella, Jace, and Korie. On February 11, 2015, acting on a report of environmental neglect, the Tennessee Department of Children's Services ("DCS") sent a case manager to Mother and Father's home to investigate.

         The investigation revealed a home unfit for human habitation. The case manager observed piles of trash, empty propane cans, and broken glass in the yard. The contents from a malfunctioning toilet flowed directly into the yard. The front door of the home was broken, allowing cold air to enter. The floor directly inside the home's entrance was badly deteriorated, and a large hole had formed.

         The interior of the home was also dirty and unsafe, filled with used batteries, dirty dishes and clothes, trash, and more empty propane cans. Dirty diapers were scattered throughout the home. The home lacked running water and electricity, and a propane heater was being used near flammable objects. Tobacco products were in easy reach of the children.

         Unsurprisingly, the state of the children reflected the home. The children appeared dirty.

         The case manager administered drug screens to the parents. Mother's test showed negative, but Father's test showed positive for methadone.

         The case manager informed the parents that the home was unsafe. Mother and Father agreed to move the children to a hotel temporarily so that they could eliminate the safety hazards. The next day, however, after discovering that the parents and the children had remained in the home, DCS filed an emergency petition seeking temporary protective custody of the children.

         The Juvenile Court for Cumberland County, Tennessee, entered a protective custody order granting temporary legal custody of the children to DCS on February 12, 2015. After a preliminary hearing, the court found probable cause to believe that the children were dependent and neglected. At the adjudicatory hearing on April 24, 2015, Mother and Father stipulated that the children were dependent and neglected and further stipulated to the facts alleged in DCS's emergency petition. Consequently, the court found that DCS had proven by clear and convincing evidence that the children were dependent and neglected.

         On October 5, 2015, DCS filed a petition to terminate the parental rights of both Mother and Father.[1] The petition alleged abandonment by failure to establish a suitable home, abandonment by an incarcerated parent, substantial noncompliance with the requirements of the permanency plans, severe child abuse, and persistent conditions that prevented the children from being returned to the parents' custody. On February 17, 2016, the court held a hearing on DCS's petition to terminate parental rights.

         A. Proof at the Hearing

         1. The 2012 Dependency and Neglect Case

         This was not DCS's first encounter with this family. On March 30, 2012, DCS received a report of prenatal drug exposure when Mother gave birth to twins, Jace and Korie. Upon admission to the hospital, Mother tested positive for benzodiazepines, opiates, and THC.[2] At birth, Jace tested positive for opiates, and Korie tested positive for opiates and benzodiazepines. The family was living in a hotel, having recently been evicted for not paying rent. The children were placed in the protective custody of DCS on April 1, 2012. On September 24, 2012, the Juvenile Court for Cumberland County, Tennessee, adjudicated all six children dependent and neglected and further found that Jace and Korie were the victims of severe child abuse perpetrated by Mother and Father "due to mother's pre-natal drug use and the father's knowledge of that pre-natal drug use and failing to stop or attempt to stop the pre-natal drug abuse."

         Both parents cooperated fully with DCS and freely admitted their struggles with substance abuse. The parents obtained alcohol and drug assessments and followed the recommendations for inpatient substance abuse treatment. During the course of treatment, Mother learned that she was a "binge user, " in that she was able to maintain sobriety for a period of time and then would relapse after a triggering event. Father obtained a psychological evaluation and received appropriate mental health treatment.

         By June 24, 2013, the parents had obtained new housing and addressed their substance abuse and mental health issues. After approving the condition of the new home, DCS allowed the three oldest children to return to the parents for a trial home visit. In August, however, Mother suffered a relapse, which necessitated additional treatment and supervision and slowed the return of the remaining children.

         On February 8, 2014, because the parents had fulfilled their responsibilities in the permanency plan, the court returned custody of all six children to the parents. Unfortunately, one year later, the juvenile court again removed the children from their parents' custody based on the deplorable condition of the home and concerns about the parents' drug use.

         2. The 2015 Dependency and Neglect Case

         DCS, with the participation of the parents, developed a new permanency plan on March 2, 2015, with the twin goals of return to parent and adoption. The 2015 plan identified four areas of concern and directed the parents to take specific actions to meet those concerns. First, because of the parents' history of drug abuse, the plan required the parents to submit to an alcohol and drug assessment and follow all recommendations, refrain from associating with drug abusers, and submit to random drug screens. Second, to ensure a safe and suitable home for the children, the plan directed the parents to obtain a legal means of support, develop a budget, obtain appropriate housing, demonstrate the ability to maintain a safe and clean home, and allow monthly home visits. Third, because Mother and Father had disclosed potential mental health issues, the plan required the parents to obtain psychological evaluations and follow all recommendations. Finally, Mother and Father were directed to pay child support, visit their children, and complete parenting classes after the other plan requirements were met because of their pattern of poor parenting skills.

         After explaining the plan requirements and the criteria for termination of parental rights to the parents, the case manager attempted to help them fulfill their responsibilities. She set up phone calls and visitation with the children. She showed them the hazardous conditions in the home that needed to be remedied. She provided information for the parents to schedule alcohol and drug assessments and psychological evaluations. She also discussed applying for public housing and developing a budget. She provided both gas cards and actual transportation. She administered numerous random drug screens and supervised visitation with the children. As the case progressed, she reminded the parents of their responsibilities and offered continued assistance.

         Between February and July, however, the parents made little progress. They did not remedy the safety concerns in the home, obtain appropriate alcohol and drug assessments, [3] or complete psychological evaluations. Father failed drug screens in March and April. Mother also failed her April drug screen, was arrested for shoplifting, and spent nine days in jail.

         Mother was incarcerated a second time on May 16, and remained in jail until mid-October. Father was incarcerated for probation violations for ten days in May and from June 19 until July 22. By July, neither parent had paid any child support, and Father pled guilty to three counts of criminal contempt for his failure to pay.

         The court held a review hearing on July 24, 2015, making the obstacles to reunification apparent. The parents stipulated that:

[Mother] is presently incarcerated. [Father] was recently incarcerated on a [probation violation]. [Father] failed his hair follicle this month for methamphetamine, oxycodone, and THC. [Mother] was clean on her most recent hair follicle, but she has been incarcerated since May and admitted to using suboxone and THC prior to her incarceration. Their home currently has no water or electricity, and the outside of the home has not been cleaned.

         Both parents failed the drug screens administered on the day of the hearing.[4] In late July, the parents' home and all its contents were destroyed in a fire. Fortunately, neither parent lived in the home at the time.

         After the July hearing, Father found employment with an excavation company and subsequently made three child support payments: $30 in August, $45 in September, and $15 in November. He failed another drug screen in August, but he passed his drug screen in November. The case manager testified that Father had been unavailable for drug screens since November. By February 2016, Father had not obtained an alcohol and drug assessment or received any treatment for substance abuse.

         Mother completed a substance abuse program while in jail and passed a drug screen when she was released in mid-October. She also submitted to a second alcohol and drug assessment but never obtained the results or learned the recommendations. In December, Mother tested positive for oxycodone without a prescription. She completed a psychological evaluation in January, which indicated that she was at high risk for a relapse. Mother never obtained steady employment; she worked for a short time for "the Villa" and cleaned a few houses.

         Mother and Father moved into a new rental home in January 2016. Both parents claimed that their new home would be safe and appropriate for the children. The case manager, however, testified that, although she had attempted one or two random home visits, the parents were never home when ...


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