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In re River C.

Court of Appeals of Tennessee, Knoxville

April 28, 2017

IN RE RIVER C.

          Assigned on Briefs April 3, 2017

         Appeal from the Juvenile Court for Hamilton County No. 269, 305 Robert D. Philyaw, Judge

         Justin 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.

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

          Jason A. Fisher, Chattanooga, Tennessee, for the appellant, Justin C.

          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.

          Berry Foster, Chattanooga, Tennessee, Guardian ad Litem.

          D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which ANDY D. BENNETT and KENNY W. ARMSTRONG, JJ., joined.

          OPINION

          D. MICHAEL SWINEY, CHIEF JUDGE

         Background

         The 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's[1]parental 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.

         At the 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.

         Father 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."

         Father 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.

         Father 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.

         Father 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 that charge.

         The 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."

         When 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 . . . .

         Mother was arrested. Father stated that Mother admitted ownership of the methamphetamine materials. Father testified that he was not arrested on that day.

         Father 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.

         Father 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.

         Father 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.

         Father 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 so."

         Father 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 stated:

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.

         Father 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."

         Father 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' home.

         Father 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.

         Father 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.

         Father 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.

         Father testified that his fiancée also is a Christian. Father did not know to which church his fiancée belonged.

         Father 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.

         Father 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."

         Father 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.

         Father 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]."

         The 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.

         Foster 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 that day.

         The 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."

         Foster 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.

         Foster 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.

         When 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.

         Foster 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], house.
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.

         The 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 ...

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