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In re Travis H.

Court of Criminal Appeals of Tennessee, Knoxville

May 5, 2017

IN RE TRAVIS H.

          Assigned on Briefs April 3, 2017

         Appeal from the Juvenile Court for Jefferson County No. 16-00424 Dennis Roach, II, Judge

         Father appeals the termination of his parental rights on grounds of: (1) failure to substantially comply with permanency plans; (2) abandonment by failure to establish a suitable home; (3) persistence of conditions, (4) abandonment by an incarcerated parent for wanton disregard; and (5) abandonment by an incarcerated parent for willful failure to support. We vacate the trial court's determination regarding the ground of abandonment by an incarcerated parent for willful failure to support, but otherwise affirm the trial court's determinations regarding the remaining grounds for termination. We likewise affirm the trial court's determination that termination of Father's parental rights is in the child's best interest. Accordingly, we affirm the termination of Father's parental rights.

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

          Daniel Hellman, Knoxville, Tennessee, for the appellant, Travis H.

          Herbert H. Slatery, III, Attorney General and Reporter; Jordan K. Crews, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services.

          James D. Hutchins, Dandridge, Tennessee, Guardian ad Litem.

          J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Andy D. Bennett, J., joined.

          OPINION

          J. STEVEN STAFFORD, JUDGE.

         Background

         The child at issue in this appeal was born in October 2013 to unmarried parents Travis H. ("Father") and Bobbie S.S ("Mother").[1] On May 16, 2015, the child and his half-sister ("half-sister")[2] were removed from parents' home due to allegations of nutritional neglect, drug exposure, and environmental neglect. On July 1, 2015, Father signed the Criteria and Procedures for Termination of Parental Rights. On August 19, 2015, the juvenile court adjudicated the children dependent and neglected and they were placed in the custody of the Tennessee Department of Children's Services ("DCS").

         DCS developed three permanency plans for the child, all of which were ratified by the trial court. The first plan, developed in June 2015, required that Father obtain and maintain appropriate drug-free housing for a period of three to four months, have stable income and pay child support, have a means of transportation or a plan for transportation, complete parenting classes, obtain mental health and alcohol and drug assessments and follow all recommendations, and submit to random drug screens and pill counts. In addition, with regard to many of the requirements above, Father was required to submit proof that he had met these requirements to DCS. In the six months following the development of the plan, Father completed a mental health assessment and an alcohol and drug assessment. DCS alleges, however, that Father failed to follow the recommendations that resulted from the assessments or otherwise complete any of the plan's additional requirements. The second plan, developed in September 2015, added only one additional requirement-that Father follow the recommendations of his mental health assessment. A final plan was developed in March 2016. This plan changed the goal from reunification to adoption, but did not alter Father's responsibilities.

         In January 2016, Father was arrested on three counts of theft and thirteen counts of fraudulent use of a credit card. Father was eventually sentenced to eleven months, twenty-nine days, of which he served forty-five days in confinement. After Father's release from confinement in February 2016, he was soon arrested on additional charges. First, Father was arrested in April 2016 for failure to pay child support. Father posted a $100.00 bond on this charge to secure his release. On or about May 3, 2016, Father was again arrested, this time for violating his probation. It appears from the record that Father was sentenced to thirty days with "two for ones." Father was again arrested in June 2016 for violating his probation and was sentenced to serve the remainder of his sentence. While incarcerated, Father was charged with an additional crime after he walked away from a work detail. It appears that Father was sentenced to serve sixty days consecutive for the crime of escape. Father also pleaded guilty to driving on a suspended license in July 2016. It appears Father was sentenced to six months incarceration for this crime, again consecutive to the violation of probation Father was serving at the time of the plea.

         In the meantime, on May 20, 2016, while Father was incarcerated, DCS filed a petition to terminate Father's parental rights on the grounds of: (1) failure to substantially comply with permanency plans; (2) abandonment by failure to establish a suitable home; (3) persistence of conditions, (4) abandonment by an incarcerated parent for wanton disregard; (5) abandonment by an incarcerated parent for willful failure to support; and (6) abandonment by an incarcerated parent for willful failure to visit.[3] DCS later withdrew its allegations concerning willful failure to visit. A trial occurred on September 14, 2016. At the time of trial, Father remained incarcerated and was expected to be released in March 2017.

         Mother, Father, the half-sister's father, a DCS case worker, and the children's Foster Mother testified at trial. Because this appeal only involves Father, we will only discuss the testimony that is relevant to his appeal. Father testified that DCS had been previously involved with the family due to marijuana use. The family at that time had participated in DCS Services, but, soon after DCS ceased involvement with the family, drug use again became an issue. Father admitted that the children had been removed from his home in May 2015 but denied that their removal was the result of his drug use. There is no dispute that Mother and two other persons living in the home at the time of the removal tested positive for illegal drugs. A drug screen performed on May 12, 2015, also showed that Father was positive for "BUP."[4] Father testified, however, that he was prescribed Suboxone, a form of BUP, by a physician and that he only began taking the drug shortly after the removal of the children. According to Father, when he could no longer afford physician's visits, he purchased his Suboxone from "the street." Father also admitted that he tested positive for methamphetamine in August 2015 but claimed that he only used that drug once. Father likewise admitted to using marijuana when he was not incarcerated and that he had previously attended drug rehabilitation. A drug screen performed on Father in October 2015 showed that Father tested positive for marijuana. Father testified without dispute, however, that he had taken a drug screen the day of trial, which had come back "clean."

         Father testified that he was currently incarcerated with an anticipated release date of March 2017. Father stated, however, that he hoped to be released earlier if he is approved for drug court. According to Father, he was arrested in January 2016 on three theft charges, as well as thirteen fraudulent use of a credit card charges. Father had no criminal history prior to January 2016. Father also admitted that the credit card belonged to his sister. Eventually, Father pleaded guilty to these charges and was sentenced to eleven months, twenty-nine days incarceration, suspended to forty-five days. Father testified that he was released from jail in late February, only to return to jail in April for failure to pay child support. Father testified, however, that he was immediately released from incarceration after making a purge payment of $100.00, which Father testified represented ten $10.00 monthly payments based upon a previous child support order. In April, Father returned to jail for approximately fifteen days for a violation of probation. Father again returned to jail in June 2016, where he remained at the time of trial.

         Father next testified regarding his efforts to pay support, establish a home, and meet his obligations under the permanency plans. Father acknowledged that he was aware of his requirements under the permanency plans. According to Father, he attempted to meet those requirements when he was not incarcerated. Father testified that prior to January 2016, he was employed at several different locations, but that he never had difficulty finding a job. According to Father, he used his income for rent, food, gas, and hygiene; the little money that was left over went toward attempting to find suitable housing and sometimes cigarettes. Father testified that prior to his current incarceration, he was attempting to get a job in roofing to maintain a more stable income for the child. Father testified that he put in two applications for housing but that he never heard back. As such, Father testified that he moved around considerably following the removal of the children. Father admitted that DCS was unable to perform a home study on at least one of the residences because he "never followed up with that." The instability of Father's housing had been ameliorated, however, according to Father, as he testified that he and the child would live in a home provided by his father upon his release from incarceration.

         Father also testified that, although he did complete both a mental health and an alcohol and drug assessment, he had been unable to complete the recommendations of either. Specifically, Father testified that he could not complete the requirements of the alcohol and drug assessment because he was incarcerated. With regard to the mental health assessment, Father testified that he refused the recommendation to be placed on medication management because he had witnessed others go through withdrawal after taking similar drugs. Father testified, however, that he would participate in counseling regarding his pain management.

         Katharyn Way, the child's DCS caseworker, testified regarding her involvement in the case. Ms. Way had been involved with the case since the summer of 2015. According to Ms. Way, the children were removed from the home due to drug use by several adults in the home, the lack of utilities in the home, and questions regarding malnourishment of the child's half-sister. Ms. Way testified regarding Father's visits with the child. In general, Father made an effort to visit with the child prior to becoming incarcerated in January 2016.

         Ms. Way testified that she attempted to help Father obtain stable housing by giving Father a brochure of possible housing options and providing a letter for Father to attach to his housing applications. In addition, Ms. Way testified that she informed Father that DCS would help with rental payments once housing was secured. Because Father never provided proof to DCS that he had secured housing, however, this service was never used. Instead, Ms. Way testified that Mother and Father often informed her that they were moving or had recently moved. Often, the addresses provided to Ms. Way were inaccurate. As a result, Ms. Way was unable to perform a home study on any home that Father allegedly resided in. Ms. Way also testified that she had difficulty contacting Father, who had given her as many as eight different telephone numbers during her tenure on the case.

         Ms. Way testified that DCS developed three permanency plans for Father. After giving Father six months on each plan with Father making little to no progress, DCS decided to go forward with termination. Indeed, Ms. Way testified that Father's living situation was worse at the time of trial than when the children were originally taken, as Father was now incarcerated.

         Foster Mother testified that the child and half-sister have been residing in the home since July 28, 2015.[5] According to Foster Mother, the child is doing well in the home. Although the child suffers from anxiety in large groups, Foster Mother testified that the child has bonded with the church family where her husband is a pastor. The child refers to Foster Mother and her husband as mommy and daddy. According to Foster Mother, the child has never asked about Father. Foster Mother further testified that it is her and her husband's desire to have the children become permanent members of their home, either as legal guardians or by becoming approved to adopt the children.

         The trial court entered an order terminating Father's parental rights to the child. The trial court first noted that DCS conceded that they could not prove willful failure to visit at trial. The trial court concluded, however, that clear and convincing evidence of abandonment by an incarcerated parent through wanton disregard was established, as Father had engaged in drug use and criminal activity throughout the child's life, leading him to be incarcerated. Next, the trial court concluded that DCS had shown that Father failed to establish a suitable home for the child, given DCS's evidence about the efforts its agents expended in helping Father to find a home and Father's admissions that rather than find a home, he engaged in further criminal activity and failed to keep in touch with DCS concerning his living arrangements. The trial court also concluded that the ground of substantial non-compliance with a permanency plan had been met, as Father failed to obtain stable housing or employment and failed to follow the recommendations resulting from his mental health and alcohol and drug assessments. In addition, the trial court concluded that DCS had proven the ground of persistent conditions, in that Father had failed to remedy the lack of suitable home that led to the child's removal and appears to have made little progress toward achieving the stability necessary to return the child to him. The trial court also found that Father failed to pay any support in the period of time from September 6, 2015, to January 6, 2016. Although the trial court noted that Father made a $100.00 payment in April 2016, the trial court determined that this payment was token. Finally, the trial court ruled that the termination of Father's parental rights was in the child's best interest. Father now appeals.

         Issues Presented

         Father presents five issues for our review, which are taken from his brief and reordered:

1. Was the evidence presented at trial sufficient to meet the clear and convincing standard that the termination was appropriate based upon the ground of abandonment by failure to provide a suitable home.
2. Was the evidence presented at trial sufficient to meet the clear and convincing standard that the termination was appropriate based upon the ground of abandonment by incarcerated parent by wanton disregard.
3. Was the evidence presented at trial sufficient to meet the clear and convincing standard that the termination was appropriate based upon the ground of abandonment by incarcerated parent for failure to support.
4. Was the evidence presented at trial sufficient to meet the clear and convincing standard that the termination was appropriate based upon the ground of substantial noncompliance with the permanency plan.
5. Was the evidence presented at trial sufficient to meet the clear and convincing standard that the termination was appropriate based upon the ground of persistent conditions.
6. Was the evidence presented at trial sufficient to meet the clear and convincing standard that the termination was in the best interest of the child.

         Analysis

         According to the Tennessee Supreme Court:

A parent's right to the care and custody of her child is among the oldest of the judicially recognized fundamental liberty interests protected by the Due Process Clauses of the federal and state constitutions. Troxel v. Granville, 530 U.S. 57, 65 (2000); Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption of Female child, 896 S.W.2d 546, 547-48 (Tenn. 1995); Hawk v. Hawk, 855 S.W.2d 573, 578-79 (Tenn. 1993). But parental rights, although fundamental and constitutionally protected, are not absolute. In re Angela E., 303 S.W.3d at 250. "'[T]he [S]tate as parens patriae has a special duty to protect minors . . . .' Tennessee law, thus, upholds the [S]tate's authority as parens patriae when interference with parenting is necessary to prevent serious harm to a child." Hawk, 855 S.W.2d at 580 (quoting In re Hamilton, 657 S.W.2d 425, 429 (Tenn. Ct. App. 1983)); see also Santosky v. Kramer, 455 U.S. 745, 747 (1982); In re Angela E., 303 S.W.3d at 250.

In re Carrington H., 483 S.W.3d 507, 522-23 (Tenn. 2016) (footnote omitted).

         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 Jacobe M.J., 434 S.W.3d 565, 568 (Tenn. Ct. App. 2013) (quoting 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)). A person 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. Consequently, both the grounds for termination and the best interest inquiry 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. ...


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