Assigned on Briefs April 3, 2017
from the Juvenile Court for Hamilton County No. 269, 305
Robert D. Philyaw, Judge
C. ("Father") appeals the order of the Juvenile
Court for Hamilton County ("the Juvenile Court")
terminating his parental rights to the minor child River C.
("the Child") on the ground of abandonment by
wanton disregard pursuant to Tenn. Code Ann. §§
36-1-113(g)(1) and 36-1-102(1)(A)(iv) and the ground of
substantial noncompliance with the permanency plan pursuant
to Tenn. Code Ann. § 36-1-113(g)(2). We find and hold
that clear and convincing evidence was proven that grounds
existed to terminate Father's parental rights pursuant to
Tenn. Code Ann. § 36-1-113(g)(1) and Tenn. Code Ann.
§ 36-1-113(g)(2) and that it was proven by clear and
convincing evidence that the termination was in the
Child's best interest. We, therefore, affirm the judgment
of the Juvenile Court terminating Father's parental
rights to the Child.
R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
Court Affirmed Case Remanded.
A. Fisher, Chattanooga, Tennessee, for the appellant, Justin
Herbert H. Slatery, III, Attorney General and Reporter; and
W. Derek Green, Assistant Attorney General, for the appellee,
State of Tennessee Department of Children's Services.
Foster, Chattanooga, Tennessee, Guardian ad Litem.
MICHAEL SWINEY, C.J., delivered the opinion of the court, in
which ANDY D. BENNETT and KENNY W. ARMSTRONG, JJ., joined.
MICHAEL SWINEY, CHIEF JUDGE
Child was taken into State custody on December 19, 2014, and
was adjudicated dependent and neglected on May 27, 2015. The
Child was approximately six months old when he entered State
custody. The State of Tennessee Department of Children's
Services ("DCS") filed its petition seeking to
terminate Father's and Mother'sparental rights to
the Child on December 11, 2015 ("the Petition").
The case was tried over several days in August and September
of 2016. The Child was two years old at the time of trial.
time of trial, Father was incarcerated in the Bradley County
jail where he had been for a little over 90 days. Father
participated in the trial by telephone. Prior to his
incarceration in the Bradley County jail, Father had been
incarcerated in the Hamilton County jail. His incarceration
in the Hamilton County jail began in November of 2015, and
lasted approximately 70 days.
also was incarcerated at the time that DCS filed the
Petition. Father testified that he had been charged with
felony evading, assault, and theft of property. Father stated
that he could not remember all of the offenses with which he
had been charged. Father admitted that one of the charges was
for possession of methamphetamine. Father pled guilty and has
been sentenced on those charges. He stated that he
"received six years on enhanced state probation with
also a GPS monitor and a 6:00 to 6:00 curfew."
testified that he recently was sentenced to four years in
Cleveland, Tennessee for violating probation on the
underlying charges of simple burglary and theft of property,
which he incurred in 2010. Father admitted that he has had
convictions in Hamilton County General Sessions Court after
the Child was taken into State custody.
admitted that he was convicted in 2006 in Georgia of felony
possession of marijuana and felony manufacture of marijuana.
In 2013, Father was charged in Walker County with DUI,
possession of marijuana and driving on a suspended license.
He received 24 months suspended sentence and was put on
probation for these offenses. Father stated that he was not
on parole in Georgia when he incurred the charges in Hamilton
County because he had violated his parole earlier and been
sentenced in Georgia where he served nine months. Father
could not remember the dates he served time in Georgia, but
stated that it was from December of 2013, until June, July,
or August of 2014.
admitted that he was charged with driving on a revoked
license in November of 2014. Father was put on probation for
that offense. Father stated that "was prior to [the
Child] being taken from the home." In January of 2015,
Father was charged with DUI. He served 60 days on that
charge. In May of 2015, Father was charged with unauthorized
use of an automobile or joyriding. He served six months on
Child was taken into State custody on December 19, 2014.
Since the Child was taken into custody Father has been out of
incarceration for only 80 or 90 days. Father stated:
"About somewhere. I mean, I haven't been out over
four months on the streets."
asked about the circumstances of how the Child entered State
custody, Father stated:
They come out to the home. At the time, I wasn't doing no
drugs. The woman said that - - or they come out there and
said there was a disturbance or something. And whenever they
was approached the home, they totally surrounded the house,
and all that. Whenever they come in the house, they said that
there was meth being cooked.
There was no meth being cooked at the home. When they
searched, they found some material that, I guess - - I
didn't have no knowledge that it was even there . . . .
was arrested. Father stated that Mother admitted ownership of
the methamphetamine materials. Father testified that he was
not arrested on that day.
stated that after the Child was taken into State custody the
Child was placed with Father's first cousin, John M., and
his cousin's wife, Brandie M. (collectively "his
Cousins"). Father stated that the Child has not been in
his Cousins' home the entire time that he has been in
State custody. Father testified:
He was taken out of their home at one time. In the beginning,
he went to another foster care home, and then he went into
John and Brandie's home, and then there was some
allegations or something that was said and [the Child] was
tooken out of their home but placed back into their home.
is aware that his Cousins want to adopt the Child. He stated
that he is not in agreement with this adoption. Father
stated: "If my rights was to be terminated, I would - -
I would be in agreement of it. But, if not, I would like to
be able to, whenever I get released from custody, to pursue
to be able to get my rights back to my son." Father was
asked why he didn't want his Cousins to adopt the Child,
and he stated:
I would like to be able to pursue custody at the time of my
release. I mean, I know that it has been a significant amount
of time and there have been numerous things that has went on.
But, you know, I ask for mercy of the Court to accept that,
you know, I am going through - - I mean, I was going to be
released from here on - - if I had been released on the 5th
from here, I was going to go straight to CADAS and admitted
into CADAS and go to Joe Johnson, was going to admit into Joe
Johnson to get all that taken care of.
I got my home, but I just needed to find a job and get that
squared away. Other than that, you know, I know that
there's a lot of things that has happened.
stated that he has nine more months to serve in Bradley
County. Father admitted that he previously had stated that he
would be released by the time of trial, but that did not
happen. Father insisted, however, that he would be out in
less than a year.
was asked when he last saw the Child, and he stated:
"2014 - - or 2015." Father could not recall the
month, and he stated: "I've been incarcerated a
lot." Father was asked if he beleved that the Child
still remembered him, and he stated: "I would say
testified that his plan is to live with his fiancée
when he is released. Father has been involved in a
relationship with his fiancée since September of 2015.
He testified that they have been engaged since October of
2015, which was shortly before Father's current
incarceration. When asked about his fiancée, Father
She's - - [my fiancée], she runs RT Cycles. She
has a master's associate's in accounting. She works
at Stone Source in Hamilton County off of Broad Street as a
sec - - not a secretary, but accountant. She does the
accounting for her mother and father's shop, RT Cycles.
She's owned her home for approximately 15 years.
She's never had no criminal charges or anything criminal.
She doesn't do drugs.
is not in contact with Mother and does not know where she is
living. Father stated that the last he knew was that Mother
was "in some mental health evaluation or hospital that
was in Georgia called Out Of Darkness."
was asked if he was doing drugs prior to his incarceration in
November of 2015, and he stated: "No, ma'am, the
drugs was Alicia Boles (phonetic) that was in the vehicle,
and no one - - and she wouldn't take ownership of it, and
they released her and arrested me." When questioned
further Father admitted that he had someone in the car who
had drugs on them. Father stated that the Child was not in
the car with them at that time, but was at his Cousins'
admitted receiving a copy of the Permanency Plan created for
the Child ("the Permanency Plan") and also admitted
that DCS had reviewed the plan with him. Father stated that
he did recall signing a Permanency Plan after the Child was
taken into State custody. Father admitted that he knew what
his responsibilities were under the Permanency Plan. He
stated: "I was supposed to go through the mental health
evaluation, drug assessment evaluation, a stable job, stable
living, and take care of all legal matters that I had
going." Father was asked if he had accomplished any of
the tasks on the Permanency Plan, and he stated: "Did I
accomplish anything on the plan? No, ma'am." He
stated: "Once [the Child] was taken out of my - - out of
the home - - [the Child] didn't want for nothing. I
worked every day. And when [the Child] was taken out of the
home, I lost any and all care of life, really." Father
was asked if he had taken advantage of any of the services or
classes offered while he was incarcerated so that he could
work on the tasks on the Permanency Plan, and he stated:
"I tried to, ma'am, but they said I didn't have
enough time." Father admitted that he didn't do
anything while incarcerated.
stated he was "100 percent sober" and that the last
time he used drugs was in January of 2015. Father was asked
why he asserted that things would be different when he was
released from incarceration, and he stated:
Well, you know, I have lived a life of not the most righteous
life. The one thing I have been trying to do this whole time,
I have been trying to make amends with anybody and everybody
that I have ever hurt mentally, physically, or emotionally,
and that goes with [the Child] also.
I wrote my kids a letter with Leanne. I wrote Leanne a
letter. And I just want forgiveness from people, you know
because I've spent - - I'm 30 years old. I've
spent over three-quarters of my adult life in incarceration.
I'm tired of it.
testified that he has converted to Christianity. He stated:
I stay in my word. I pray every night and every morning
whenever I get up. I go to church whenever they attend them
here in the jail and in Hamilton County when I was there. You
know, I just want to be able to - -for my soul to be at rest
because my soul is filled with failure.
My heart and mind is at peace with God, but my soul is filled
with failure. I failed my children. I failed my mother. I
failed my father.
testified that his fiancée also is a Christian. Father
did not know to which church his fiancée belonged.
was asked if he had any idea where he will be working upon
his release from incarceration, and he stated that he would
work at Totts Remodeling doing construction. Father stated
that his family members have talked to the boss at Totts
Remodeling, but Father has not yet spoken with him.
agreed that the Child has been in State custody for 599 days.
Father agreed that if he is released in nine months, as he
asserted he would be, the Child still would be in State
custody for a total of around 869 days. Father was asked if
it was fair that the Child would not have seen Father for two
or three months of 2015, the entire year of 2016, and the
first five months of 2017, assuming that Father is released
when he asserts he will be. Father stated: "No, it
isn't fair to him, Your Honor - - or sir." Father
then stated: "It would be in the best interest for a son
to be raised by his biological father. That's what I
would like to be able to be explained to him." Father
insisted that the Child "might not completely remember
me, but he will remember me."
admitted that the Child has formed a bond with his foster
parents. Father stated:
Yes, I'm sure he has [formed a bond with them]. That is -
- I mean, that is one of his family members. And why they
ever even put a - - the State made them where my son could
just be in the custody of one of his family members, they
made them go to adoption against me. But I didn't fail a
drug test on December 19th, 2014.
agreed that the Child most likely refers to his foster father
as daddy. Father stated: "But he isn't the father.
He isn't - - he might be playing daddy, but he isn't
the father of [the Child]."
Child's foster mother, Brandie M. ("Foster
Mom"), testified at trial. Foster Mom explained that her
husband ("Foster Dad") is Father's cousin. The
Child entered their home on January 2, 2015. Foster Mom and
her husband do not have any other children.
Mom testified that the Child has not been in her home
continuously since that time, and she further explained:
There was a one-week break where he was removed from the home
due to some miscommunications with two different caseworkers,
our home worker, our resource parent worker, and the home
study worker. Unfortunately, they were asking different
questions and, of course, getting different answers. And so,
although it was essentially the same question, it was phrased
differently. And once we had a child and family team meeting
to clear all of that up, we were able to pick [the Child] up
Child was six months old when he entered the foster home.
Foster Mom was asked what the Child was like when he entered
their home, and she stated: "Healthy, happy. He did come
to us with a double ear infection, and that was recurring
throughout that winter, but since then, we've not had any
issues. He didn't seem to have any attachment issues.
Everything was as normal as you could ask for." Foster
Mom was asked if the Child was meeting his developmental
milestones, and she stated: "He's actually exceeding
most of his milestones."
Mom testified that they received occasional phone calls and
text messages from Father and Mother when the Child first
entered their home. She stated: "But those stopped
relatively early on." Father last saw the Child on
January 14, 2015, and they received two phone calls from him
after that time. Foster Mom testified that the Child is
bonded to her and her husband. The Child calls her
'Momma' and her husband 'Dadda.' As far as
Foster Mom is aware, the Child could not identify Father if
he saw him.
Mom testified that she and her husband never have had a close
relationship with Father. She was asked about their
relationship with Father's mother, and she stated:
She's been very helpful with [the Child] in helping to
make sure that we are able to meet all of his needs.
She's provided far more than she ever needed to for him.
We speak on at least a weekly basis, if not every couple of
days. She checks in to see how [the Child's] doing, how
school is going, health-wise.
She's attended every function that we've had for him.
She actually held his last birthday party for us. She's -
- we have definitely grown closer since [the Child] came into
our home. . . . She really likes to go shopping for him.
She's all the time bringing clothes or toys. She actually
asked me in the waiting room earlier about a toy that she
found, to see if I thought he would like it so that she could
go buy it today.
asked about the Child's relationship with other family
members, Foster Mom stated:
My family has taken him in as one of their own. My parents
love him very much, as does my brother. All my familly has
welcomed him with open arms. All of John's family and, in
turn, [Father's] family is very close with him.
We actually, with DCS permission, took him down to Florida to
see [Father's] brother and his wife and nephew back in
May so that he could begin to form a relationship with them
and more than just a telephone kind of relationship.
He's absolutely bonded with everyone that he's come
in contact with. He's a very friendly, loving child.
Mom testified that Father has other children and that she and
her husband have facilitated a relationship between the Child
and Father's other children. Foster Mom explained:
Over the past several months, the other mother has agreed to
allow the other children to know who [the Child] is as their
brother. And so we've gotten them together quite a few
times at the grandmother's, [Father's mother's],
We were at a family reunion with them at one point. They have
been slowly developing a relationship and I think it's
been very healthy for all four of them. There are three other
children and [the Child]. And [the Child's] been very,
very excited about brothers and sister. He asks for them
quite frequently, actually.
Child is enrolled in a daycare close to where Foster Mom
works. Foster Mom testified that she could be at the daycare
"within about five minutes." When asked how the
Child was doing in daycare, Foster Mom stated:
Wonderfully. He's - - I think they're a good part of
how he has managed to exceed so many of his milestones[.] He
can count to 12 almost every single time by himself, with no
help whatsoever. He's just turned two. He knows his ABCs.
He can identify them all, capital, and most of them
lowercase. He's ...