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In re Addison P.

Court of Appeals of Tennessee, Knoxville

May 8, 2017

IN RE ADDISON P.

          Session April 18, 2017

         Appeal from the Chancery Court for McMinn County No. 2015-CV-38 Jerri Bryant, Chancellor

         This is the second appeal of this case. In the first appeal, this Court vacated the judgment and remanded to the trial court only for a determination of whether mother's failure to visit the child was willful. On remand, the trial court found that mother's failure to visit the child was willful. We affirm the trial court's conclusion that clear and convincing evidence established the ground of willful failure to visit by an incarcerated parent. We also affirm the trial court's determination that termination is in the child's best interest. Consequently, we affirm the termination of Mother's parental rights.

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

          Rachel Fisher, Cleveland, Tennessee, for the appellant, Marquita P.

          Matthew C. Rogers, Athens, Tennessee, for the appellee, Randall P., and Jamie P.

          J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which Charles D. Susano, and Thomas R. Frierson, II, JJ., joined.

          OPINION

          J. STEVEN STAFFORD, JUDGE

         Background

         This is the second appeal of this case arising from a petition for termination of parental rights. A full recitation of the factual history in this case is set out in this Court's opinion in In re Addison P., No. E2015-02102-COA-R3-PT, 2016 WL 3035650 (Tenn. Ct. App. May 20, 2016) ("Addison I"). In the first appeal, this Court vacated the judgment and remanded to the trial court only for a determination of whether mother's failure to visit the child was willful. Upon remand, the proof was neither reopened nor were there any requests for additional hearings. As a result, the facts are the same, and we restate the relevant facts here:

The child was born in February 2013, to married parents Marquita P. ("Mother") and Randall P. ("Father").[1] Parents soon divorced and Father married Jamie P. ("Step-mother, " and together with Father, "Petitioners"). On September 30, 2014, Petitioners filed a petition . . . to terminate Mother's parental rights . . . .
* * *
Mother . . . filed a motion for supervised visitation on March 30, 2015. In her motion, Mother admitted that pursuant to the parties' divorce decree, she was required to pass a "(90) day extended opiates hair follicle drug screen" before she could have supervised visitation with the child. Mother alleged that she had provided a copy of her clean drug screen to Father and his counsel on January 23, 2015. Mother further admitted that she was served with the termination petition on September 30, 2014, while Mother was incarcerated due to a probation violation "resulting from a relapse." Mother alleged that she "did not have sufficient time to provide a clean drug screen from her relapse . . . before Father filed to terminate her parental rights." Mother attached her negative drug screen as an exhibit to her motion. Finally, Mother indicated that she intended to take a second drug screen on February 15, 2015, despite the fact that her visitation motion was filed over one month after this date. Mother did not include any documents concerning the alleged second drug screening.
* * *
[The McMinn County Chancery Court ("the trial court")] continued Mother's motion for supervised visitation. At a hearing on May 7, 2015, however, Mother withdrew her visitation motion. The trial court entered an order on June 2, 2015, allowing Mother to have two phone calls per week with the child.
The trial occurred on August 10 and 26, 2015. Much of the testimony at trial concerned Mother's drug use and criminal activity. According to Father, he initiated the parties' divorce shortly after the child's birth when he learned that Mother abused drugs during her pregnancy. Fortunately, the child tested negative for drug dependency after her birth. On February 14, 2013, Father obtained an ex parte order from the trial court presiding over the parties' divorce ("divorce court") naming him temporary custodian of the child and limiting Mother to only supervised visitation. Initially, Father was required to supervise the visits. On April 9, 2013, the divorce court entered an order finding that Mother has a "substantial problem with substance abuse, " but noted that her enrollment in a drug treatment program was "a step in the right direction." Because Mother admitted she would fail, the trial court did not require Mother to submit to a hair follicle drug screen. However, the divorce court ruled that Mother was only entitled to supervised visitation by Father or another agreed upon individual unless and until Mother "show[ed] proof that she is clear for 45 days . . . with proof of two separate drug screens paid for at [Mother's] expense, then [Mother's] father can be the supervisor for her co-parenting time." If, however, Mother "fail[ed] three drug screens at any time, then her co-parenting time will be automatically suspended." Mother was also allowed to attend all of the child's doctor's appointments. The parties eventually agreed to allow Tim Hyde, the executive director of Family Court Services, to supervise Mother's visitation.
The divorce court ultimately entered a final decree of divorce on October 16, 2013. The divorce court found that Mother had not provided any negative drug screens to the court or Father. Indeed, Mother admitted that she made no effort to comply with the trial court's previous orders concerning drug screenings, even refusing to participate in a drug screening set up and paid for by Father. Accordingly, the divorce court ruled that Mother "could take a ninety day extended opiates hair follicle drug screen and then her father could be the supervisor as long as the same was clean for all substances." Further, once Mother passes "two (2) consecutive extended opiate hair follicle drug screens, at least one hundred and eighty (180) days apart, then she shall be allowed to exercise her co-parenting time unsupervised." The divorce court ruled that Mother will be solely responsible for obtaining testing and providing information to Father and his counsel. In the meantime, Mother was permitted supervised visitation "as the parties have grown accustomed to."
On October 15, 2013, one day before the entry of the final divorce decree, however, Mother was arrested for stealing drugs from Father's police car, when he worked in the canine drug unit. As a result of this arrest, Family Court Services terminated Mother's supervised visitation. Mother testified at trial that although she called around town to find another service to supervise visitation, none were available in the immediate area. Because Father would not agree to any other supervisor, Mother's visitation with the child stopped and never resumed. Mother eventually posted a $50, 000.00 bond on the theft charge, but testified that she received the funds to do so from family members.
On April 7, 2014, Mother pleaded guilty to theft between $500.00 and $1, 000.00 and was sentenced to two years supervised probation. On July 11, 2014, however, Mother tested positive for amphetamines/ methamphetamines in violation of her probation and was, therefore, arrested. Mother remained incarcerated when Father and Step-mother filed their termination petition and Mother was served with the petition while in jail. Mother's probation was subsequently revoked by order of October 3, 2014. Because Mother was only sentenced to time served, she was released from jail on October 3, 2014, with the remainder of her sentence to be served again on probation.
Mother admitted at trial, that prior to her incarceration in July 2014, she could not have passed two consecutive 90 day extended hair follicle drug screenings. Indeed, Mother testified that she has been diagnosed as an addict. Mother contended, however, that she would have been able to pass one 90 day drug screening in February 2014. Mother also testified that she has been free of drugs since her July 2014 incarceration. The record on appeal contains three negative drug screenings provided by Mother: (1) a November 8, 2014 hair follicle screening; (2) a February 24, 2015 expanded hair follicle screening; and (3) a May 27, 2015 expanded hair follicle drug screening, all of which indicated that that Mother was negative for all illegal substances tested.
Mother testified at trial that Mr. Hyde informed her that she would have to return to the divorce court before he would allow her to resume visitation under his supervision. Mother never returned to court seeking visitation, conceding that the reason she never petitioned the court for visitation after it was terminated by Family Court Services was that she could not pass a hair follicle screening. Indeed, Mother admitted that she never even attempted to take a drug screening during this time or when she was purportedly clean from drugs.
Mother testified that she made at least one attempt to regain visitation prior to the filing of the termination petition. According to Mother, she called Father in February 2014 to request visitation with the child. Mother offered that her own father could supervise the visitation. According to Mother, Father replied that he would only allow visitation as had previously been agreed, under the supervision of Family Court Services. Other than another phone call in June 2014, Mother made no other effort to reinstate visitation until her March 2015 motion, which was eventually withdrawn. After the trial court allowed Mother to make phone calls to the child, Mother admitted that she only made one phone call in May 2015. Mother testified that it was difficult to speak with the child, who is largely pre-verbal, and that Father did not properly facilitate the phone call.
Mother's current counselor, Aaron Brown, a licensed clinical social worker with Hiwassee Mental Health Center, testified about Mother's recent treatment and progress. According to Mr. Brown, Mother has passed all administered hair follicle and urine drug screens since she entered treatment and for several months before. Mr. Brown further testified that Mother has implemented strategies to prevent drug abuse relapse, including continued treatment and removal from unhealthy relationships. Mr. Brown testified that because Mother believed that her drug use was tied to overwork at her factory job, after her June/July 2014 relapse, Mother decided not to return to work. According to Mr. Brown, he and Mother decided that it would be better for Mother not to be employed because Mother earning income could lead to her buying drugs. Mr. Brown testified, however, that Mother had recently decided to work part-time in a retail setting. Mr. Brown admitted on cross-examination, however, that he does not administer drug screens to Mother and the only evidence he has of her allegedly clean drug screens since July 2014 is Mother's statements. Mr. Brown testified that he should have been informed by Mother's probation officer if she had failed any drug screens.
Mother's current probation officer, Jim Creech, also testified. Mr. Creech testified that in his time with Mother since October 2014, he has administered two urinalysis drug screens to Mother, both of which showed no drug use in the prior four days. Mr. Creech testified that he had not administered any hair follicle drug screenings to Mother. Mr. Creech also testified that there was a period in February and March 2015 in which Mother failed to meet with him and did not attend drug counseling. Mother informed Mr. Creech that she did not like to meet at the county courthouse because Father and Stepmother both worked there and that she could not attend drug counseling due to insurance issues. After the meetings were moved to another location, Mother attended all required meetings. Mr. Creech testified that Mother is behind in paying the court costs and fees required by her probation, but that it was difficult to discern whether these issues would lead to a future violation of probation.
Mother's current husband also testified. Mother and Husband married in 2014. Husband admitted that he was convicted in 2008 of conspiracy to distribute and possess 500 grams or more of methamphetamines. Husband was sentenced to nine years in federal prison, with part to be served in rehabilitation and on probation. The sentence was later reduced to 87 months (a little over seven years). At the time of trial, Husband was serving his sentence on probation, but testified without dispute that his probation may terminate early. Husband admitted his involvement in the crime and that he had used methamphetamines. Husband testified, however, that he had never used methamphetamines with Mother and that he is regularly drug screened due to his probation.
Husband further testified that Mother is capable of working. According to Mother, however, she has been unable to find work due to her felony record. Documents included in the record show that Mother joined a staffing agency in an effort to find work. Mother testified that all of her expenses are paid by Husband, who has gainful employment, or other family members. In addition, Mother testified that her car is owned by Husband and that Husband and her father paid for her various attorneys in her criminal and unrelated family law case. Mother also testified that she ...

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