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In re Rylan G.

Court of Appeals of Tennessee, Knoxville

June 28, 2017

IN RE RYLAN G., ET AL.

          Assigned on Briefs May 1, 2017

         Appeal from the Juvenile Court for Claiborne County No. 2015-JV-1659 Robert M. Estep, Judge

         This is a termination of parental rights case. The trial court terminated

         Appellant/Mother's parental rights on the grounds of: (1) abandonment by failure to provide a suitable home; (2) substantial non-compliance with the permanency plan; and (3) severe child abuse. Because Appellee, Tennessee Department of Children's Services, did not meet its burden to show that it exercised reasonable efforts to assist Mother in obtaining suitable housing, we reverse the trial court's finding as to the ground of abandonment by failure to establish a suitable home. The other grounds for termination of Mother's parental rights are met by clear and convincing evidence, and there is also clear and convincing evidence that termination of Mother's parental rights is in the best interests of the children. Affirmed in part, reversed in part, and remanded.

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

          Jordan Chandler Long, Knoxville, Tennessee, for the appellant, Ariel G.

          Herbert H. Slatery III, Attorney General and Reporter, and W. Derek Green, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services.

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

          OPINION

          KENNY ARMSTRONG, JUDGE

         I. Background

         This case involves three minor children, Rylan G.[1] (born March 2011), Myka G. (born August 2012), and Adisyn G. (born September 2013) (collectively, the "Children"). The Children's mother is Ariel G. ("Mother, " or "Appellant"), and their father is Edward G. ("Father"). In February of 2014, the Tennessee Department of Children's Services ("DCS, " or "Appellee") became involved with the family. On or about February 24, 2014, Adisyn was taken to the emergency room of East Tennessee Children's Hospital. She exhibited seizure-like behavior and had bruises on her scalp, forehead, and eyes. Mother and Father reported that Adisyn had accidentally hit her head on a toy; however, medical personnel examined the injuries and determined that the injuries could not have occurred in the manner reported by the parents. Dr. Marymer Perales, a forensic pediatrician, opined that the injuries were caused by trauma.

         On February 27, 2014, DCS filed a petition for a restraining order against Mother and Father in the Juvenile Court of Claiborne County ("trial court"). On February 28, 2014, the trial court entered a restraining order against Father, ordering no contact between Father and the Children and removing Father from the home. The trial court's order also required that Mother allow no contact between Father and the Children. The trial court also appointed a guardian ad litem for the Children. In August or September of 2014, the Children, Mother, and Billy D. (Mother's paramour) moved into the home of the maternal grandmother. On March 23, 2015, a DCS case manager contacted Mother because Billy disclosed to police that he spanked Myka and bruised her. DCS cautioned Mother to monitor Billy's discipline of the Children.

         On November 18, 2015, Mother left the Children with Billy while she was at work. When Mother returned home, she found Myka's face bruised and swollen. Mother testified that Billy told her that Myka hit her head while at a doctor's appointment earlier in the day. Mother took a photograph of Myka's injuries. The next morning, on November 19, 2015, Mother noticed that the bruising had worsened, and she took Myka to the emergency room at Claiborne County Hospital. Myka had significant bruising on her scalp, forehead, eyes, and left underarm; her face was puffy, and her left eye was swollen shut. The same morning, Myka was transferred to East Tennessee Children's Hospital for further treatment. She was diagnosed with a subgaleal hematoma and required several months of recovery to reduce the swelling on her face and scalp. Billy admitted to law enforcement that he punched Myka, and he pled guilty to aggravated child abuse and neglect.

         On November 20, 2015, DCS filed a dependency and neglect petition on the ground of severe child abuse; DCS also requested an emergency protective custody order. On November 23, 2015, the trial court entered a protective custody order, finding the Children dependent and neglected due to an immediate threat to the Children's health or safety. The Children were placed in foster care.

         On December 9, 2015, Mother, Father, and DCS entered into a permanency plan, which required Mother and Father to complete: (1) alcohol and drug assessments; (2) mental health assessments; (3) clinical parenting assessments; and (4) domestic violence classes. The plan also required Mother and Father to address environmental concerns to create a suitable home.

         On April 14, 2016, DCS filed a petition to terminate Mother and Father's parental nights.[2] DCS averred the following grounds in its petition as to Mother: (1) abandonment by failure to provide a suitable home; (2) substantial non-compliance with the permanency plan; and (3) severe child abuse. The trial court heard the petition to terminate Mother's parental rights on October 13 and 14, 2016. By order of November 30, 2016, the trial court terminated Mother's parental rights on the grounds of: (1) abandonment by failure to provide a suitable home; (2) substantial noncompliance with the permanency plan; and (3) severe child abuse. Mother appeals.

         II. Issues

         Mother raises four issues for review, which we restate as follows:

1. Whether DCS made reasonable efforts to assist Mother in establishing a suitable home?
2. Whether the trial court erred in terminating Mother's parental rights due to substantial noncompliance with the permanency plan?
3. Whether the trial court erred in terminating Mother's parental rights due to severe child abuse?
4. Whether the trial court erred in finding that the termination of Mother's parental rights is in the best interests of the Children?

         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 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). 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.

         On appeal, we review the trial court's findings of fact "de novo on the record, with a presumption of correctness of the findings, unless the preponderance of the evidence is otherwise." In re Taylor B.W., 397 S.W.3d 105, 112 (Tenn. 2013); Tenn. R. App. P. 13(d). We then make our "own determination regarding whether the facts, either as found by the trial court or as supported by a preponderance of the evidence, provide clear and convincing evidence that supports all the elements of the termination claim." In re Bernard T., 319 S.W.3d 586, 596-97 (Tenn. 2010). We review the trial court's conclusions of law de novo with no presumption of correctness. In re J.C.D., 254 S.W.3d 432, 439 (Tenn. Ct. App. 2007).

         IV. Grounds for Termination

         As noted above, the trial court relied on the following statutory grounds in terminating Appellant's parental rights: (1) abandonment by failure to provide a suitable home; (2) substantial noncompliance with a permanency plan; and (3) severe child abuse. 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). Accordingly, we will review all of the foregoing grounds.

         A. Abandonment by Failure to Establish a Suitable Home

         The trial court found, by clear and convincing evidence, that Mother's parental rights should be terminated on the ground of abandonment by failure to provide a suitable home, pursuant to Tennessee Code Annotated Section 36-1-113(g)(1), as defined at Tennessee Code Annotated Sections 36-1-102(1)(A)(i). In pertinent part, Tennessee Code Annotated Section 36-1-113(g) provides:

(g) Initiation of termination of parental or guardianship rights may be based upon any of the grounds listed in this subsection (g). The following grounds are cumulative and non-exclusive, so that listing conditions, acts or omissions in one ground does not prevent them from coming within another ground:
(1) Abandonment by the parent or guardian, as defined in § 36-1-102, has occurred[.]

Tenn. Code Ann. § 36-1-113(g)(1). Tennessee Code Annotated Section 36-1-102 defines "abandonment, " in relevant part, as follows:

(1)(A) For purposes of terminating the parental or guardian rights of a parent or parents or a guardian or guardians of a child to that child in order to make that child available for adoption, "abandonment" means that:
* * *
(ii) The child has been removed from the home of the parent or parents or the guardian or guardians as the result of a petition filed in the juvenile court in which the child was found to be a dependent and neglected child, as defined in § 37-1-102, and the child was placed in the custody of the department or a licensed child-placing agency, that the juvenile court found, or the court where the termination of parental rights petition is filed finds, that the department or a licensed child-placing agency made reasonable efforts to prevent removal of the child or that the circumstances of the child's situation prevented reasonable efforts from being made prior to the child's removal; and for a period of four (4) months following the removal, the department or agency has made reasonable efforts to assist the parent or parents or the guardian or guardians to establish a suitable home for the child, but that the parent or parents or the guardian or guardians have made no reasonable efforts to provide a suitable home and have demonstrated a lack of concern for the child to such a degree that it appears unlikely that they will be able to provide a suitable home for the child at an early date. The efforts of the department or agency to assist a parent or guardian in establishing a suitable home for the child may be found to be reasonable if such efforts exceed the efforts of the parent or guardian toward the same goal, when the parent or guardian is aware that the child is in the custody of the department[.]

         In its order terminating Mother's parental rights, the trial court found:

In the summer of 2016, [M]other resided with a new paramour and that home had additional concerns including broken windows and exposed wiring. The efforts made by [DCS] under those circumstances were reasonable. Ultimately the issue of the safety of the home revolves around [Mother's] choices of men. Her choices have not only been bad, they have been dangerously bad. Her inability to choose wisely and protect her children has led to this difficult conclusion that she has abandoned her children based on the failure to provide a suitable home. [DCS] made reasonable efforts to assist [Mother] to the best extent that it could. By clear and convincing evidence, the requirements of Tenn. Code § 36-1-113(g)(1) and 36-1-102(1)(A)(ii) have been met for abandonment for failure to provide a suitable home.

         Mother argues that DCS failed to make reasonable efforts to assist her in establishing a suitable home for the Children. As noted by the trial court, Tennessee Code Annotated Section 36-1-102(1)(A)(ii) requires DCS to make "reasonable efforts" related to housing during the relevant time period.[3] Because the Children were removed on November 19, 2015, the relevant four-month time period referenced in the statute is November 20, 2015 to March 20, 2016. From our review of the record, Mother has maintained a transient lifestyle since the Children were removed from her custody. After Billy's incarceration for child abuse, Mother established a relationship with a new paramour, Mario M., and moved into Mario's house. Mother ended this relationship in July of 2016 and moved into a friend's apartment, for approximately one month, where she slept on a couch. At the time of trial, Mother stated that she had moved to a second friend's apartment and had stayed with this friend for a few weeks. Mother stated that she does not have a bedroom, and she sleeps on a couch. Accordingly, there is clear and convincing evidence that Mother has not established a suitable home for the Children. Our inquiry, however, does not end here. Because the statute requires DCS to make reasonable efforts to assist the parent in establishing a suitable home, we now turn to address that question.

         Turning to the record, on June 1, 2016, DCS filed an affidavit of reasonable efforts. Although the document is titled "affidavit of reasonable efforts, " the substance of the affidavit is insufficient; it contains no information about DCS' efforts to assist Mother in obtaining suitable housing. Instead, the affidavit merely restates the requirements of Mother's permanency plan, as follows:

The parent's permanency plan requires the following steps so that the family can be reunified: The Permanency Plan requires the parents to complete an alcohol and drug assessment, mental health assessment, clinical parenting assessment, attend classes on domestic violence, child abuse and battering, and address environmental concerns.
* * *
The Department of Children's Services recommends that Rylan, Myka and Adisyn G[.] remain in the custody of the state of Tennessee Department of Children Services at this time, as neither parent is able to appropriately care for the children's needs and no relative or kinship placement has been identified.
The department asks that the permanency plan be ratified on this day. The foregoing are the reasonable efforts this case manager has made to affect permanency for the child(ren) and reunite the family since the last court date.

         The record indicates that, on July 13, 2016, Rachel Day, a DCS case manager, visited Mother at Mario's residence. As Ms. Day and Mother walked through the residence, Ms. Day pointed out exposed wiring, exposed insulation, and broken windows, which Mother reported she would fix. From the record, Ms. Day only provided recommendations about the condition of the property, i.e., that Mother should repair the wiring, insulation, and windows. The record is devoid of any evidence that Ms. Day provided Mother with services to establish a suitable home, e.g., a referral to assist Mother in obtaining other suitable housing or in remedying the dangerous conditions ...


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