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In re Kenya H.

Court of Appeals of Tennessee, Knoxville

July 5, 2017

IN RE KENYA H.

          Assigned on Briefs June 1, 2017

         Appeal from the Juvenile Court for Hamilton County No. 272454 Robert D. Philyaw, Judge

         This appeal concerns the termination of a father's parental rights. The Tennessee Department of Children's Services ("DCS") filed a petition in the Juvenile Court for Hamilton County ("the Juvenile Court") seeking to terminate the parental rights of George C. ("Father") to his minor child Kenya H. ("the Child"). After a trial, the Juvenile Court entered an order terminating Father's parental rights. Father appealed. We reverse the grounds of substantial noncompliance with the permanency plan and willful failure to visit, but affirm the ground of wanton disregard. We further affirm that termination of Father's parental rights is in the Child's best interest. The judgment of the Juvenile Court is affirmed, in part, and reversed, in part.

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

          Emily Brenyas, Chattanooga, Tennessee, for the appellant, George C.

          Herbert H. Slatery, III, Attorney General and Reporter, and, Kathryn A. Baker, 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

         The Child was born to Father and Ann. H. ("Mother") in July 2014. The Child was born at home. Mother gave the Child to relatives. In September 2014, DCS petitioned for and was granted temporary legal custody of the Child. In November 2014, the Juvenile Court adjudicated the Child dependent and neglected. In October 2014, Father signed on to a parenting plan. Father was informed that he needed to establish paternity in order to visit with the Child. Father then disappeared. DCS reestablished contact with Father when he was incarcerated on September 9, 2015. Judgment later was entered against Father on evading arrest, driving on a suspended/revoked license, and failure to appear. Father remained incarcerated through March 10, 2016. While in jail, Father worked on certain of his permanency plan responsibilities. For example, Father took part in parenting and anger management classes. On June 24, 2016, DCS filed a petition seeking to terminate Father's parental rights to the Child. Trial was held in October 2016, and Father's counsel was present but not Father.

         Katherine Blackwell ("Blackwell"), the DCS employee supervising visits between Father and the Child, testified that Father's first supervised visit occurred on March 29, 2016. Blackwell stated that Father was "kind of standoffish" and that "we actually had to end the visit a little early because the child was crying uncontrollably to the point to where she was gagging." After Father missed three visits in August 2016, the visitation was removed from Blackwell's schedule.

         Kalia Williams ("Williams"), a former family service worker for DCS who worked on the Child's case, testified as follows:

Q. Could you please tell the Court how [the Child] came into the custody of the Department, please?
A. Yes, ma'am. [The Child] was born in-home July 14th of 2014. [The Child] was then given to a relative of [Father's], I want to say.
THE COURT: Did you say born at home?
THE WITNESS: Yes, sir.
A. The baby did not have any identification. She didn't have a birth certificate, insurance card or anything like that. And the guardian that she had at the time needed to have her seen for medical treatment and was unable to, so she took her to the Rhea County office of Department of Children's Services and divested custody because she couldn't get medical treatment for her, and then that's when I got the case.
Q. Okay. So how did she go from being in Rhea County DCS to Hamilton County DCS?
A. Because I had a prior -- a case already open on the siblings. The mother had an open case with the Department, so the child was transported down here.
Q. Okay. And when did you first make contact with the parents in this case?
A. My first contact with [Mother] was in September of 2014. She was here on the case of her children, so that was my first contact with her. And my first contact with [Father], I want to say, was maybe November of 2014.
Q. Now, at the time that [the Child] first came into custody, was [Father] her legal father?
A. Yes.
Q. They had already established that?
A. Oh, no. I'm sorry. DNA had not been established yet.
Q. Okay. Was he holding himself out to be her father?
A. Yes.
Q. And how did you become aware of that?
A. He stated that he was the father, and [Mother] also stated that he could be the father of the baby.
Q. Did [Mother] or [Father] ever tell you that they were living together at the time that their child was born?
A. Yes.
Q. Did [Mother] or [Father] ever tell you how the child came to be born at home rather than in a regular hospital setting?
A. Speaking with [Mother], she told me she had the baby at home due to her prior involvement with the Department, she was fearful that the Department would take her child away from her, so she didn't want to have the baby in the hospital. And she also told me that [Father] had been abusive to her, would not allow her to go to a hospital to have the baby.
Q. Okay. Let's talk about that. What disclosures did [Mother] make to you regarding the alleged conduct of [Father]?
A. [Mother] told me that [Father] had beat her on several occasions. She showed marks on her body, on her arms, on her legs, on her right eye. She stated that [Father] had hit her with the plug of a dryer, the socket part had hit her in her face and caused her to have partial blindness in her right eye. Yeah, that's what she told me.
Q. At any time, did [Mother] discuss with you that she was being held captive?
A. She did. When I finally saw her again in September, we did talk about the length of time that she was absent from the other children's case. She stated that [Father] was pretty much holding her against her will, would not let her come to visitations or speak to anybody outside of that home regarding him or the other two children.
Q. Okay. And during your involvement in this case, did the parents maintain contact with you?
A. Not regularly.
Q. What efforts did you make to maintain contact with the parents?
A. As far as [Mother] is concerned, I know she had a Facebook account, so
I would speak to [Mother] as often as I could via Facebook. [Father], the only number I had for him was his mother's number. That's the only address I initially had, so I would try to do contact that way. I'd try to call.
I would send contact letters. Go by the house, [Father] wasn't there, or
[Father's] mother would say that he was out of town. She was unaware of where his whereabouts were.

         Continuing her testimony, Williams stated:

Q. Okay. As far as [Father] is concerned, what were his specific tasks and responsibilities under the first plan?
A. [Father] was to establish paternity of [the Child] through DNA testing, obtain and maintain housing for a period of six months, participate in domestic violence counseling, participate in alcohol and drug assessment and follow all recommendations, sign required releases, have a mental health evaluation, to address concerns of anger management and depression and follow those recommendations, maintain legal verifiable income and provide verification, adhere to no contact order with [Mother], and pay child support as ordered.
Q. So what, if any, tasks or responsibilities did [Father] complete while you were involved with this case?
A. [Father] did have stable housing. He was residing with his mother in the home with her. He did eventually establish paternity of [the Child]. He participated in a parenting class while he was in Silverdale. He participated and completed anger management ...

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