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In re Candice H.

Court of Appeals of Tennessee

May 31, 2017

IN RE: CANDICE H., ET AL.

          Assigned on Briefs April 3, 2017

         Appeal from the Juvenile Court for Montgomery County No. 16-JV-380, 16-JV-381, 16-JV-382 Tim Barnes, Judge

         This appeal arises from the termination of a father's parental rights. The Tennessee Department of Children's Services ("DCS") filed a petition in the Juvenile Court for Montgomery County ("the Juvenile Court") seeking to terminate the parental rights of Jeffrey H. ("Father") to his minor children Candice, Danonie, and Izabella ("the Children"). The Children had entered DCS custody after a domestic incident between Father and the Children's mother. After a trial, the Juvenile Court entered an order finding by clear and convincing evidence that grounds existed to terminate Father's parental rights and that termination is in the Children's best interest. Father appealed. Finding it inapplicable to putative biological parent Father, we reverse the ground of failure to establish paternity found as regards the child Danonie. We affirm the rest of the Juvenile Court's judgment terminating Father's parental rights to the Children.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed, in Part, and Reversed, in Part; Case Remanded

          Daniel P. Bryant, Clarksville, Tennessee, for the appellant, Jeffrey H.

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

          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

         In May 2014, Father and the Children's mother had a domestic incident in a car which was pulled to the side of the road. The Children[1] and two half-siblings were present. The parents allegedly were under the influence of alcohol. Father tested positive for marijuana when the Children entered custody. In July 2014, the Children were adjudicated dependent and neglected due to their being exposed to drug abuse and domestic violence. The Children have been in DCS custody since the 2014 domestic incident.

         Permanency plans were entered for Father. Father was required to pay $10 per month in child support for each of the Children. The permanency plans contained a number of requirements for Father, including: attend domestic violence classes and provide documentation; participate in random drug screens; and obtain appropriate housing.

         In April 2016, DCS filed a petition seeking to terminate Father's parental rights to the Children.[2] This matter was tried in July 2016. The bulk of the testimony at trial came from DCS family service worker Taylor Brown ("Brown"). Brown took over the Children's case in October 2015. Brown testified that Father is the legal Father of Candice and Izabella, and the alleged father of Danonie. Brown stated that records reflected no child support paid by Father for the Children. Brown testified that during the relevant four-month period between December 4, 2015 and April 3, 2016, there was no reason why Father could not pay child support. Brown stated further that Father is capable of working and currently works for a landscaping company. Brown stated that in the four months after removal and in spite of DCS efforts to assist him, Father made no attempt to remedy the reasons that the Children entered custody in the first place. Brown stated that in all the time the Children have been in custody, Father never has provided a suitable home for the Children. Brown testified Father maintained only sporadic visitation with the Children. Brown stated further that she was not aware of Father being involved in the Children's medical, dental, school, or psychological appointments.

         Continuing her testimony, Brown testified that Father was inconsistent at participating in drug screens. Father failed to appear for a number of drug screens, resulting in testing "positive by default." Brown was not aware that Father had attended any domestic violence classes. Brown stated that Father completed a clinical assessment, but "that's it." As to the Children's current environment, Brown testified that the Children had bonded well with the foster family. Finally, regarding Father's temperament, Brown stated that Father cursed her on occasion and made her feel uncomfortable around him.

         The Foster Father testified. Foster Father serves in the U.S. Army. Foster Father stated his willingness to adopt the Children should they become available for adoption. Foster Father testified as to his intentions concerning the Children:

My long-term vision for them would be staying with as if they were my biological children. I would nurture them and expect them to be successful young adults going to college, having successful careers, whether that's military service or, you know, something -- some level of public service. I don't see any of the kids having an issue with going to college and being successful in life. They are very academically inclined, so I think they have a bright and successful future ahead of them.

         Father testified. Father testified regarding his participation in the case, particularly in regard to the allegations of an anger problem and drug abuse:

Q. Okay. And the recent failure for benzos, do you have [an] explanation for that?
A. Yes. I went to the emergency room with muscle spasms, and they give me three different types of medicine.
***
Q. (By Mr. Bryant) [Father], have you taken any over-the-counter drugs since that time?
A. I take ibuprofen every now and again.
Q. Okay. For the same muscle issues?
A. Yeah.
***
Q. Okay. And as far as these classes and these assessments, have you done any of these assessments that DCS has been talking about so far in this case?
A. I did the clinical, but Ms. Taylor keeps saying she's going to put in the paperwork. Every time I ask her, she'll say she's going to put in the paperwork. I can't do it, because I ain't got no insurance, and I've got to wait on her to put in the paperwork, but she ain't done it yet, so I can't.
Q. And which class was that?
A. It's the A&Ds, the domestic -- everything but the clinical.
Q. Okay. You've done the clinical assessment?
A. Yes.
Q. Okay. And when the prior worker was on the case, did you do any of the A&D -- did you do an A&D assessment at all during this case?
A. When Mr. Vega [the previous caseworker] had it, he didn't tell me I had to do no A&D assessment and no domestic.
Q. Okay.
A. That came about when she got the case.
Q. Okay. Did you ever go to any other facility for any other assessment?
A. I went to Bradford like four different times when they said they sent the stuff to them, but they said they never got it.
Q. Okay. So you went to Bradford four times?
A. Yeah.
Q. Do you recall when you did that?
A. I can't remember the exact date, but it was last year.
Q. In 2015?
A. Yeah.
Q. Is there any illegal activity happening in your home?
A. Not that I know of.
Q. Have you had any sort of criminal legal problems since you got out of jail?
A. No.
Q. And that was in the middle of 2015; is that right?
A. Yeah.
Q. And do you see anything that would prevent you from caring for the kids if you were ...

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