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In re Damien G. M.

Court of Appeals of Tennessee, Knoxville

May 3, 2017

IN RE DAMIEN G. M.

          Assigned on Briefs April 3, 2017

         Appeal from the Juvenile Court for Bradley County No. J-12-219Kurt Andrew Benson, Magistrate

         This is a termination of parental rights case. Father/Appellant appeals the termination of his parental rights to the minor child on the grounds of: (1) abandonment by willful failure to provide a suitable home and willful failure to support; (2) substantial noncompliance with the requirements of the permanency plan; and (3) persistence of the conditions that led to the child's removal from Father's home. Father also appeals the trial court's finding that termination of his parental rights is in the child's best interest. Because Appellee has failed to meet its burden to prove, by clear and convincing evidence, any of the grounds for termination of Father's parental, we reverse and remand.

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

          Berry Foster, Cleveland, Tennessee, for the appellant, Billy S.

          Herbert H. Slatery, III, Attorney General and Reporter, and Ellison M. Berryhill, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services.

          Kenny Armstrong, J., delivered the opinion of the court, in which W. Neal McBrayer, J., joined. Charles D. Susano, Jr., J., filed a dissenting opinion.

          OPINION

          KENNY ARMSTRONG, JUDGE

         I. Background

         The child at issue in this case, Damien G. M., was born to Sandra M. ("Mother")[1]and Billy S. ("Appellant, " or "Father") in December of 2011.[2] Although Appellant and Mother were not married at the time of Damien's birth, Appellant was adjudicated the legal and biological father by order of August 2, 2012.[3]

         The Tennessee Department of Children's Services ("DCS, " or "Appellee") first became involved with this family in October of 2014, when DCS received a referral alleging educational neglect of Damien's older sibling, who is not the subject of this appeal, and drug exposure of both children. On October 31, 2014, Child Protective Services investigators attempted to meet with Mother to address the allegations, but she was unwilling to meet. On December 15, 2014, DCS received a second referral, alleging drug exposure. DCS was able to contact Mother following the second referral. She met with DCS and submitted to a drug screen, testing positive for methadone, for which she allegedly had a valid prescription. DCS received a third referral on February 10, 2015. At that time, Mother filed a non-custodial permanency plan to address the truancy case involving the older child. On April 1, 2015, Mother appeared before the Juvenile Court for Bradley County (the "trial court") on the truancy case. She allegedly notified the court that she was homeless and without income. The court ordered her to submit to a drug test, and she tested positive for methamphetamine. On April 1, 2015, the court allegedly issued a bench order of removal, placing the children in DCS custody.[4]

         On April 17, 2015, Damien, who was three years old at the time, was given a hair follicle drug screen, which was positive for methamphetamine and amphetamine. On April 20, 2015, DCS conducted a Child and Family Team Meeting, which Father attended. The parties developed a permanency plan, which was explained to Father, along with the statement of parent's responsibilities. In relevant part, Father's requirements, under the permanency plan, were to: (1) sign all releases for DCS to obtain information; (2) submit to random drug screens; (3) refrain from being around those who use illegal substances; (4) attend Damien's medical appointment; (5) provide DCS with a valid lease; (6) provide DCS with a valid driver's license; (7) maintain stable housing for six months; (8) maintain contact with DCS; (9) provide proof of legal income; and (10) submit to alcohol and drug assessment and follow any recommendations.

         On May 4, 2015, DCS filed a "Petition in Response to the Bench Order, " alleging that Damien had been subjected to severe child abuse by Mother and that he was dependent and neglected due to Father's drug use. Based on the allegations contained in the petition, DCS asked the trial court to find Damien dependent and neglected. After Damien was removed from Mother's custody, DCS approached Father for possible placement of the child. However, when he was drug tested, Father tested positive for methamphetamine, and, as a result, Damien was placed with a family acquaintance. In May of 2015, DCS received a copy of Father's first drug and alcohol assessment, which recommended that he attend five chemical dependency support group meetings; the record indicates that Father attended the recommended meetings. Family Services Worker Zachery Peters testified that Father continued to fail random drug tests after he completed the recommended meetings. Mr. Peters further testified that Father completed a second alcohol and drug assessment, which recommended no further treatment. Although Mr. Peters testified that he last requested a drug screen sometime around March of 2016, the appellate record contains no specific proof of: (1) the exact dates that Father was asked to submit to drug screens; (2) the dates of the drug screens he failed; (3) the dates of drug screens he refused to take; or (4) whether the requested drugs screens, failed drug screens, and refusals occurred before or after Father's second alcohol and drug assessment.

         On June 17, 2015, Mr. Peters met with Father to discuss his lack of progress and positive drug screens. Father stated that his positive screens were due to Mother breaking into his residence and contaminating his tea with methamphetamine. He also opined that his positive screens could be the result of his consumption of energy drinks. On or about June 25, 2015, the trial court allegedly adjudicated Damien to be dependent and neglected due to Father's illegal drug use.[5] Also on June 25, 2015, the trial court ratified the April 20, 2015 permanency plan, finding the goals and responsibilities to be appropriate and reasonably related to the reasons the child came into DCS custody.

         On August 5, 2015, Father was served with a child support summons and petition. On September 14, 2015, he failed to attend the hearing on the petition in the child support court. By default, Father was ordered to pay $308.00 per month in child support (pursuant to the guidelines for full-time minimum wage income) and $42.00 per month toward child support arrears. In its petition to terminate Father's parental rights, DCS averred that he had "only paid . . . $800.00 total in support for this child . . . since August 2, 2012 . . . . During that period [of non-payment], more than . . . $12, 355.00 has accrued pursuant to the court's orders." According to the petition to terminate parental rights, Father was incarcerated, for non-payment of child support, from September 9, 2015 until October 28, 2015.

         On February 3, 2016, DCS filed a petition to terminate Father's parental rights on grounds of: (1) persistence of the conditions that led to the child's removal; (2) abandonment by willful failure to support; (3) substantial non-compliance with the requirements of the permanency plan; and (4) abandonment by failure to provide a suitable home. The petition was heard on August 25, 2016. By order of September 14, 2016, the trial court terminated Father's parental rights on all of the grounds asserted by DCS and on its finding that termination of Father's parental rights is in the child's best interest. Father appeals.

         II. Issues

         Father raises the following issues for review, as stated in his brief:

1. The Appellant would respectfully submit that no clear and convincing evidence was presented to support a finding of persistent conditions.
2. The Appellant would respectfully submit that no clear and convincing evidence was presented to support a finding of abandonment-failure to provide a suitable home.
3. The Appellant would respectfully submit that no clear and convincing evidence was presented to support a finding of abandonment-failure to support.
4. The Appellant would respectfully submit that no clear and convincing evidence was presented to support a finding of substantial non-compliance with the permanency plan.
5. The Appellant would respectfully submit that no clear and convincing evidence was presented to support a finding that termination of Appellant's parental rights would be in the best interest of this child as required by Tenn. Code Ann. § 36-1-113(c).

         III. Standard of Review

         Under both the United States and Tennessee Constitutions, a parent has a fundamental right to the care, custody, and control of his or her child. Stanley v. Illinois, 405 U.S. 645, 651 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn. 1996). Thus, the state may interfere with parental rights only when a compelling interest exists. Nash-Putnam, 921 S.W.2d at 174-75 (citing Santosky v. Kramer, 455 U.S. 745 (1982)). Our termination statutes identify "those situations in which the state's interest in the welfare of a child justifies interference with a parent's constitutional rights by setting forth grounds on which termination proceedings can be brought." In re W.B., Nos. M2004-00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005) (citing Tenn. Code Ann. § 36-1-113(g)). A person or entity seeking to terminate parental rights must prove both the existence of one of the statutory grounds for termination and that termination is in the child's best interest. Tenn. Code Ann. § 36-1-113(c); In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

         Because of the fundamental nature of the parent's rights and the grave consequences of the termination of those rights, courts must require a higher standard of proof in deciding termination cases. Santosky, 455 U.S. at 769. Accordingly, both the grounds for termination and that termination of parental rights is in the child's best interest must be established by clear and convincing evidence. Tenn. Code Ann. § 36-3-113(c)(1); In re Valentine, 79 S.W.3d at 546. Clear and convincing evidence "establishes that the truth of the facts asserted is highly probable ... and eliminates any serious or substantial doubt about the correctness of the conclusions drawn from the evidence." In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004), perm. app. denied (Tenn. July 12, 2004). Such evidence "produces in a fact-finder's mind a firm belief or conviction regarding the truth of the facts sought to be established." Id. at 653.

         In light of the heightened standard of proof in termination of parental rights cases, a reviewing court must modify the customary standard of review in Tennessee Rule of Appellate Procedure 13(d). As to the trial court's findings of fact, our review is de novo with a presumption of correctness unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d). We must then determine whether the facts, as found by the trial court or as supported by the preponderance of the evidence, clearly and convincingly establish the elements necessary to terminate parental rights. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).

         IV. Grounds for Termination of Parental Rights

         As noted earlier, the trial court relied on the following statutory grounds in terminating Appellant's parental rights: (1) persistence of the conditions that led to the child's removal from Father's home, Tenn. Code Ann. § 36-1-113(g)(3); (2) abandonment by willful failure to support, Tenn. Code Ann. §§ 36-1-113(g)(1), 36-1-102(1)(A)(i); (3) substantial noncompliance with the requirements of the permanency plan, Tenn. Code Ann. § 36-1-113(g)(2); and (3) abandonment by failure to provide a suitable home; Tenn. Code Ann. §§ 36-1-113(g)(1), 36-1-102(1)(A)(ii). In its appellate brief, DCS concedes that it has not met its burden of proof to show abandonment by willful failure to support, abandonment by failure to provide a suitable home, and persistence of the conditions that led to the child's removal. Although only one ground must be proven by clear and convincing evidence in order to terminate a parent's rights, the Tennessee Supreme Court has instructed this Court to review every ground relied upon by the trial court to terminate parental rights in order to prevent "unnecessary remands of cases." In re Angela E., 303 S.W.3d 240, 251 n.14 (Tenn. 2010) (emphasis added). Although DCS relies only on the ground of substantial non-compliance with the requirements of the permanency plan, because the trial court relied on four grounds, we will review all of the grounds cited by the trial court.

         A. Persistence of Conditions

         Tennessee Code Annotated Section 36-1-113(g)(3) defines persistence of conditions as follows:

(3) The child has been removed from the home of the parent or guardian by order of a court for a period of six (6) months:
(A) The conditions that led to the child's removal or other conditions that in all reasonable probability would cause the child to be subjected to further abuse or neglect and that, therefore, prevent the child's safe return to the care of the parent(s) or guardian(s), still persist;
(B) There is little likelihood that these conditions will be remedied at an early date so that the child can be safely returned to the parent(s) or ...

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