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In re Skylar P.

Court of Appeals of Tennessee, Knoxville

June 21, 2017

IN RE SKYLAR P., [1] ET AL.

          Assigned on Briefs April 3, 2017

         Appeal from the Juvenile Court for Bradley County No. J-14-318 Kurt A. Benson, Judge

         Mother appeals the trial court's decision to terminate her parental rights to two children on the grounds of: (1) abandonment by failure to provide a suitable home; (2) abandonment by willful failure to provide support; (3) substantial noncompliance with the requirements of the permanency plans; and (4) persistence of conditions that precipitated the children's removal from Mother's custody. The trial court found by clear and convincing evidence that termination of Mother's parental rights was in the best interest of the children. We reverse in part and affirm in part.

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

          Emily Beth Brenyas, Chattanooga, Tennessee, for the appellant, Tabitha P.

          Herbert H. Slatery, III, Attorney General and Reporter and Rachel Erin Buckley, Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Children's Services.

          Andy D. Bennett, J., delivered the opinion of the Court, in which Charles D. Susano, Jr., and Kenny W. Armstrong, JJ., joined.

          OPINION

          ANDY D. BENNETT, JUDGE.

         I. Factual and Procedural Background

         Tabitha P. ("Mother") is the biological mother of Skylar P., born in August 2008, and Tobyn G., born in October 2012 (together with Skylar, "the children"). Tracy P. is Skylar's biological father.[2] Tobyn's biological father is Denver S.[3]

         On August 27, 2014, the Tennessee Department of Children's Services ("DCS") received a referral alleging that the children were exposed to drugs. DCS investigated and discovered that Mother and the children were residing in a one-bedroom apartment with Mother's boyfriend, Jeremy A. ("Jeremy"), as well as another couple and their two children. On September 3, 2014, Mother submitted to a drug screen and tested positive for methamphetamine, amphetamine, and marijuana. Jeremy also submitted to a drug screen and tested positive for methamphetamine, amphetamine, ecstasy, and marijuana. Mother admitted that the adults smoked methamphetamine in the home while the children were present, but she required that the children remain in the bedroom while the adults used drugs. Financially, Mother depended on Jeremy's disability check to provide for the children because she was unemployed. The children entered DCS custody on September 5, 2014. On November 20, 2014, the juvenile court adjudicated the children dependent and neglected because Mother was "unable to provide a safe and stable home for the children due to instability and drug use."

         Following the removal, DCS developed three permanency plans for the children between 2014 and 2015. The initial permanency plan, developed on September 19, 2014, and ratified by the trial court on September 25, 2014, listed a goal of "Return to Parent." In the second permanency plan, developed June 22, 2015, and ratified on July 9, 2015, DCS amended the permanency plan goals to "Return to Parent" and "Adoption." The third permanency plan, developed on September 2, 2015, and ratified on September 10, 2015, listed the same goals as the second permanency plan. The permanency plans required Mother to (1) obtain an alcohol and drug assessment and follow all recommendations; (2) sign all required releases for DCS to ensure proper case management; (3) submit to random drug screens; (4) refrain from being around those who use or abuse illegal substances; (5) obtain a sponsor through Narcotics Anonymous or Alcoholics Anonymous who has maintained sobriety for at least five years; (6) participate in educational meetings and comply with Skylar's individualized education program ("IEP"); (7) obtain and maintain a stable residence for at least six months; (8) provide DCS with a copy of a lease agreement in Mother's name; (9) provide DCS with a copy of a valid driver's license, proof of car insurance, vehicle registration, or a transportation plan; (10) maintain contact with the family service worker and inform the worker of any change in circumstance within twenty-four hours; (11) provide proof of legal income once obtaining employment or proof of disability income; (12) cooperate with service providers and treatment plans for the children; (13) refrain from displaying any acts of verbal or physical aggression in front of the children; (14) attend couples counseling with Jeremy, follow all recommendations, and provide DCS with documentation of completion; (15) continue medication management and follow recommendations; and (16) request, in writing, an educational assessment for Skylar.

         DCS assigned Casie Byers as the case family service worker in September 2014. At trial, Ms. Byers testified that Mother completed an alcohol and drug assessment, submitted to random drug screens, signed all required releases for DCS to ensure proper case management, and attended Skylar's IEP meetings via telephone. Ms. Byers further testified, however, that Mother failed to complete many of the tasks in the permanency plans. Specifically, Mother failed to obtain sponsorship through Narcotics Anonymous or Alcoholics Anonymous, to avoid individuals who used illegal substances, to maintain a stable residence, and to provide a copy of a valid driver's license, vehicle insurance and registration, or a transportation plan.

         Ms. Byers testified that DCS assisted Mother in finding a suitable home during the first four months following the children's removal by providing Mother with a list of housing resources and discussing with Mother which options she could afford. According to Ms. Byers, she provided no assistance beyond the list of resources and discussions because Mother always reported that she had made housing arrangements. Ms. Byers testified that, in the two years between the children's removal and trial, Mother changed her residence at least five times. Ms. Byers further stated that each time Mother moved, she failed to notify DCS of her change in circumstance within twenty-four hours, as the permanency plans required. Although Mother lived in at least five different residences, she provided only one lease agreement during the nearly two years the children were in DCS custody.

         Ms. Byers testified that Mother and Jeremy had a hostile relationship but that she was unaware of any domestic violence. In order to assist Mother in complying with the permanency plans' requirement concerning couples therapy, Ms. Byers provided Mother with telephone numbers and a list of resources. Mother, however, failed to attend couples counseling with Jeremy.

         At trial, Mother testified that she paid child support payments for December 2015 through March 2016. Mother stated that at the time she made the payments, she was working at Hardee's for approximately forty-eight hours per week and was earning $7.75 per hour. According to Mother, the child support payments were garnished from her pay checks every two weeks. Although Mother paid child support payments during this four-month period, she failed to pay child support at other times while the children were in DCS custody. Consequently, Mother was incarcerated for failure to pay child support. At the time of trial, Mother owed $3, 000 in child support arrears. Mother testified that she expected to remain incarcerated until November 23, 2016.

         Mother also testified about her residential instability. She admitted to residing in multiple residences after the children entered DCS custody. Mother further admitted that she still associated with individuals who used drugs. Specifically that, prior to her incarceration, she resided with Sheree B., Jeremy's relative, who had failed a hair follicle test. During cross-examination, Mother admitted that she used methamphetamine four to six months before trial.

         The children's foster mother, Dana C. ("Foster Mother"), testified that the children had resided with her and her husband for approximately ten months. Foster Mother stated that the children had bonded with her and her husband since entering their home. As support for this statement, Foster Mother testified that she gave the children different options for what they could call her and her husband and told them it was their choice. Foster Mother testified that the children chose to call her and her husband "mom" and "dad." She stated that she and her husband wished to adopt the children if they become available for adoption.

         On April 4, 2016, DCS filed its petition to terminate Mother's parental rights. After DCS filed its petition, the children's maternal grandparents filed a petition to intervene, seeking custody of the children. The maternal grandparents had custody of Mother's oldest daughter, who is not at issue in this case. The trial court denied the maternal grandparents' petition in part because they waited until approximately twenty-two months after the children entered DCS custody to file their petition, and because the court had concerns about their health and income.

         The trial court heard the case on August 8, 2016. On September 20, 2016, the trial court entered an order terminating Mother's parental rights to the children. The trial court found by clear and convincing evidence that Mother abandoned the children by failing to provide a suitable home, abandoned the children by willful failure to support, failed to substantially comply with the requirements of the permanency plans, and that the conditions which precipitated removal still persisted with little chance those conditions would be remedied at an early date. The trial court also found that it was in the best interest of the children to terminate Mother's parental rights.

         On appeal, Mother presents four issues for our review. Those issues can be consolidated into two issues and restated as follows: (1) whether the trial court erred in finding by clear and convincing evidence that grounds existed to terminate Mother's parental rights, and (2) whether the trial court erred in determining that termination of Mother's parental rights was in the best interest of the children.

         II. Standard of Review

         Under both the federal and state constitutions, a parent has a fundamental right to the care, custody, and control of his or her own child. Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Angela E., 303 S.W.3d 240, 249-50 (Tenn. 2010); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174-75 (Tenn. 1996) (citing Nale v. Robertson, 871 S.W.3d 674, 678 (Tenn. 1994)). This right is not absolute, however. If a compelling state interest exists, the state may interfere with parental rights. Nash-Putnam, 921 S.W.2d at 174-75 (citing Nale, 871 S.W.2d at 678). Our legislature has enumerated the grounds upon which termination proceedings may be brought. See Tenn. Code Ann. § 36-1-113(g). A parent's rights may be terminated only where a statutory ground exists. In re Matter of M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998).

         Because terminating a parent's fundamental parental rights has severe consequences, termination cases require a court to apply a higher standard of proof. State Dep't of Children's Servs. v. A.M.H., 198 S.W.3d 757, 761 (Tenn. Ct. App. 2006). Consequently, a court must determine by clear and convincing evidence both that grounds for termination exist and that termination is in the best interest of the child. Tenn. Code Ann. § 36-1-113(c); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). "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 Serenity B., No. M2013-02685-COA-R3-PT, 2014 WL 2168553, at *2 (Tenn. Ct. App. May 21, 2014) (quoting In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004) (citations omitted)).

         Because of the heightened standard of proof required in termination of parental rights cases, we must adapt the customary standard of review established by Tenn. R. App. P. 13(d). Id. In accordance with Tenn. R. App. P. 13(d), we review the trial court's findings of fact de novo with a presumption of correctness unless the evidence preponderates otherwise. Id. Next, we must determine whether the facts establish the existence of one or more grounds for termination by clear and convincing evidence. In re M.J.B., 140 S.W.3d at 654.

         III. Analysis

         Grounds for Termination

         The trial court terminated Mother's parental rights on four grounds: (1) abandonment by failure to provide a suitable home; (2) abandonment by willful failure to support; (3) substantial noncompliance with the permanency plans; and (4) the conditions that caused the children's removal still persisted. The existence of any one of these statutory ...


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