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In re Zane W.

Court of Appeals of Tennessee, Knoxville

July 6, 2017

IN RE ZANE W.

          Assigned on Briefs June 1, 2017

         Appeal from the Juvenile Court for Knox County No. 148425 Timothy E. Irwin, Judge

         Mother appeals the termination of her parental rights based on the following grounds: (1) abandonment by wanton disregard for the welfare of the child; (2) persistence of conditions; and (3) substantial noncompliance with the permanency plans. We reverse the grounds of persistence of conditions and substantial noncompliance. We, however, affirm the remaining ground of abandonment by wanton disregard for the welfare of the child and the trial court's determination that termination of Mother's parental rights is in the best interest of the child. Reversed in part, affirmed 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

          Ben H. Houston, II, Knoxville, Tennessee, for the appellant, Rebecca B.

          Herbert H. Slatery, III, Attorney General and Reporter; Brian A. Pierce, Assistant Attorney General, for the appellee, State of Tennessee, Tennessee Department of Children's Services.

          J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Andy D. Bennett, J., joined.

          OPINION

          J. STEVEN STAFFORD, JUDGE

         Background

         Zane W. ("the child") was born in January 2011 to Rebecca B. ("Mother") and Christopher W. ("Father").[1] During much of Mother's pregnancy with the child, Mother stayed at a drug treatment facility in Lewisburg, Tennessee, to address her cocaine addiction. At the time of the child's birth, however, Mother was living in a halfway house in Nashville. Shortly thereafter, Mother moved to live with a high school classmate in Hendersonville for about four to five months and later to Knoxville to live with her aunt and uncle for about eight months. Over the next year, Mother lived with various other friends she met through her drug recovery programs throughout Middle Tennessee and with relatives. In 2012, Mother rented a house but moved to another house across the street in 2015. As of the date of trial, Mother had been living in the same house since January 2015.

         The Tennessee Department of Children's Services ("DCS") first became involved with Mother and the child on March 5, 2012, when a case was opened for allegations of lack of supervision. Apparently, Mother had left the sleeping child in her car while she shopped. The case was closed, however, on March 30, 2012.

         In March 2014, Mother placed the child with Safe Families for the third time in the child's life.[2] Mother visited the child on weekends until her arrest on April 23, 2014, in Wilson County, Tennessee, for public intoxication and simple possession of a controlled substance. It is unclear when Mother was released from incarceration. Due to Mother's lack of contact, Safe Families concluded that it would be unable to continue providing care for the child after June 30, 2014. On or around this period of time, Mother moved in with Father in an attempt to reconcile with him despite having had domestic violence issues with him in the past. After Father allegedly physically abused Mother, she moved in with her boyfriend before moving into a domestic violence shelter. In July 2014, DCS received a referral alleging abandonment of the child. As a result, DCS petitioned for, and was awarded, temporary legal custody of the child in July 2014. The child was placed in kinship foster care with Mother's brother and sister-in-law ("Uncle" and "Aunt") in July 2014.

         The first permanency plan was developed at a Child and Family Team Meeting on August 1, 2014, and was ratified on September 10, 2014. At that point, Mother had just completed partial hospitalization at Ten Broeck Tennessee, a program specializing in the treatment of adults with psychiatric disorders and chemical dependency, and stepped down to intensive outpatient treatment. Under the August 1, 2014 permanency plan, Mother was required to: (1) complete parenting classes; (2) participate in therapeutic visitation; (3) follow aftercare recommendations; (4) submit to random drug screens and pass them; (5) refrain from associating with known drug users; (6) sign a release of information; (7) not incur new criminal charges and follow the rules of probation; (8) cooperate with requirements for parents with children in state custody; (9) comply with all court orders and cooperate with DCS by maintaining contact and sending verification of completion of the goals; (10) visit regularly; (11) attend court hearings and meetings; (12) pay child support; (13) keep a clean and safe home; (14) avoid illegal activity in the home; (15) obtain a legal source of income and provide proof; (16) complete a mental health assessment and follow all aftercare recommendations; (17) indicate a willingness to accept treatment for mental health issues; and (18) address anger management and domestic violence through counseling. Mother's boyfriend was initially made part of this plan; however, Mother sought to have him removed from the plan because of his issues with alcohol.

         After a hearing, an agreed order was entered on February 20, 2015. Therein, Mother stipulated to a finding by clear and convincing evidence that the child was dependent and neglected based upon her mental health issues, domestic violence in the home, alcohol and drug issues, criminal conduct, and lack of stable housing. By March 2015, Mother had successfully completed the requirements of the first permanency plan and was granted physical custody of the child on a trial basis on the condition that Mother avoid contact with her boyfriend.[3] After a hearing on July 9, 2015, Mother was restored to full custody of the child upon a finding that she had completed the requirements of the permanency plan and that DCS's involvement was no longer necessary.

         The child was returned to foster care just one month later, however. Mother, while visibly intoxicated, took a cab to pick the child up from day care at around 6 p.m. A DCS investigator, who arrived at her home approximately two hours later, observed that Mother was heavily intoxicated; as a result, the child was removed from Mother's home. DCS was again awarded temporary legal custody of the child.

         A second permanency plan was created at a Child and Family Team Meeting on August 31, 2015, and ratified on October 21, 2015. Mother was informed that she had to essentially redo every step on the plan and complete a new alcohol and drug assessment, with the addition of completing anger management classes. Although the exact details are unclear from the record, it appears that the child was initially placed with Uncle and Aunt; however, this placement was disrupted, and the child was then placed with the current Foster Parents on September 4, 2015.

         On November 12, 2015, Mother stipulated to a finding of dependency and neglect supporting the child's removal from her home "based upon the [M]other's mental health and substance abuse issues for which she is currently participating in treatment." Mother subsequently appealed this order to the Knox County Circuit Court ("circuit court"). On February 11, 2016, Mother's appeal was resolved by an agreed order in which she acknowledged that she had mental health and substance abuse issues supporting a finding of dependency and neglect on the date of the removal, and DCS acknowledged that Mother had met the second permanency plan's requirements. Pursuant to this order, the child was restored to Mother's care on another trial home placement basis.[4]

         Approximately two weeks later, on or about February 21, 2016, while the child was staying with a relative, Mother "did a bump of cocaine" with a co-worker after work because she believed that "it would help [her] clean up [her] house after [she had] worked all day." While Mother was cleaning up the house, she realized that she had forgotten about her appointment with her probation officer in Wilson County on the previous Tuesday. Mother set up another appointment to see her probation officer for February 23, 2016, the following Tuesday. On February 23, 2016, Mother left the child in the care of her boyfriend before she met with her probation officer. The probation officer requested a drug screen, but Mother admitted that she would test positive for cocaine and hydrocodone. As a result, Mother was arrested on the same day for violation of probation and was incarcerated for approximately thirty days. The boyfriend kept the child overnight but took the child to Mother's previous recovery sponsor the next day.

         Mother's sponsor informed DCS of the situation, and DCS again removed the child into foster care. On or about February 25, 2016, the circuit court granted DCS's emergency motion to suspend the trial home placement and remanded the case to the trial court. Again, the child was initially placed with Aunt and Uncle for two months before the placement was disrupted; consequently, the child was again placed with the current Foster Parents on April 8, 2016, and has remained there ever since.

         In the meantime, Mother began adult intensive outpatient treatment with Bradford Health Services ("Bradford") to address her substance abuse issues on March 31, 2016. On April 13, 2016, Mother completed a mental health assessment, which diagnosed her with Antisocial Personality Features and Narcissistic Personality Features and began individual counseling with Sarah Lord at Omni Community Health ("Omni"). On May 9, 2016, Mother completed her treatment with Bradford. At the time of her discharge, it was recommended that Mother continue with their weekly aftercare program for one year and attend recovery support groups regularly to help maintain her sobriety.

         On April 5, 2016, DCS filed a petition to terminate Mother's parental rights.[5] On April 10, 2016, Mother was once again incarcerated for failure to appear in Putnam County on an outstanding citation for driving without a license. Mother served twelve hours in jail.

         A bench trial was conducted over the course of two days, September 14, 2016, and September 29, 2016. Mother was present on the first day of trial and was called as a witness in DCS's case-in-chief.

         Mother testified that she entered a treatment facility and stopped using drugs for the child's protection when she became pregnant with him. Mother placed the child with Safe Families because she "wanted him to be safe and stable" while she was "in transition through some of the[] moves and unsure of where [she] would live." According to Mother, when the child was with Safe Families for the third time, Mother stayed with Father for two to three months because "he told [her] that he wanted to be a family . . . and [she] believed him." However, Mother testified that Father introduced drugs into the home, and Mother "became dependent on drugs, and then some domestic violence occurred." As a result, Mother "left him."

         Mother recalled that, when DCS became involved the second time, Mother "had some wine" at a lunch date on August 7, 2015, at approximately 1:00 p.m. According to Mother, the wine affected her much more than she thought it would because she had not had a drink "in a long time." As a result, Mother testified that she took a taxicab to pick the child up from day care at 6:00 p.m. rather than drive. Mother explained to the day care worker that she had had some wine and therefore did not feel comfortable driving. At approximately 8:00 p.m., Mother heard knocking on the door; however, she did not immediately open the door because she was not expecting any visitors. When they identified themselves as the police department, Mother opened the door, and DCS was with them. Mother testified that she was cooperative.

         Mother testified that, when she was arrested for her violation of probation, she left the child in her boyfriend's care. Mother admitted that she had previously been told that the child is not allowed to have contact with the boyfriend. Although her boyfriend had problems with alcohol and domestic violence in the past, Mother testified that he had been sober since October 2015. When asked about the details of the boyfriend's treatment, Mother gave very general answers about what she thought he had completed but then eventually stated that "you'd have to ask him." Mother testified that she currently is on better terms with her boyfriend "because he's not drinking."

         After Mother completed her treatment at Bradford in May 2016, Mother testified that she continued to attend recovery meetings and obtained a sponsor. However, the letter from Bradford entered into evidence shows that it made the following recommendations: "attend[] continuing care [one] time a week for at least [one] year, continu[e] individual counseling, attend[] [twelve] step meetings in the community, follow[] all legal and DCS recommendations and obtain[] a sponsor to work through the [twelve] steps." Mother explained that, although she stopped participating in aftercare after just one month, she continued to attend "regular [r]ecovery meetings." According to Mother, aftercare and recovery meetings are virtually identical. Mother admitted that she had not been giving DCS documentation of her attendance at these meetings because she "[did not] recall [DCS] requesting those records."

         Mother testified that she was not aware of anything she had not completed on the third permanency plan. With respect to her mental health, Mother testified that she participated in individual counseling with Sarah Lord at Omni until Mother was discharged in June 2016. Although DCS introduced a document suggesting that Mother was discharged from Omni for noncompliance with care, Mother testified that she was discharged because Ms. Lord was leaving Omni. As a result, Mother testified that she appealed to Omni and was able to resume individual counseling with another therapist in September 2016, just a week prior to trial. Mother testified that, while she was resolving issues with Omni, she paid a therapist named Donise Clemmer "three to four times" out-of-pocket in order to address her mental health issues in the interim. Mother also introduced into evidence an online record of her attendance at Omni. The record shows that Mother completed several appointments at Omni for medication management between June 2016 through August 2016, the period during which Mother was discharged from Omni.

         According to Mother, the child did not participate in feeding therapy while he was in her care. Mother explained that a nutrition specialist, recommended by the child's pediatrician, determined that the child did not need feeding therapy because Mother was giving him vitamins and supplements. Mother acknowledged that the child began feeding therapy in foster care because Foster Mother took the child to another pediatrician who had a different opinion. Although Mother testified that the child "seems very well adjusted" in the short-term, Mother was worried that "being severed from a mother that he loves very, very deeply, that he's very bonded with that, that this would have a negative effect on [the] child."

         Mother testified that she has lived in the same place for a year and a half as of the date of trial. In addition, Mother was employed full-time with ProLogics and owns her business Hair that Cares, a mobile hair salon. Evidence was introduced showing that Mother was up-to-date on her child support obligations. Mother admitted that the child is in DCS custody "[b]ecause of [her] poor choices."

         Leah Burke, a family-services worker for DCS, testified that she first became involved with the case on July 11, 2014, the first time the child came into foster care. According to Ms. Burke, Mother "completed each task" on the first permanency plan. The second time Ms. Burke became involved was on August 7, 2015, because Mother arrived at the child's day care intoxicated. When DCS investigated the matter, Ms. Burke recalled that Mother showed signs of intoxication in the home. Ms. Burke testified that Mother's responsibilities remained the same under the second permanency plan but with the addition of anger management classes. Ms. Burke further testified that, under both the first and second permanency plans, Mother was informed that it was her responsibility to provide evidence to DCS that she had completed each step, with which Mother complied.

         Ms. Burke was on the case until March 8, 2016. Ms. Burke admitted on cross-examination that, other than the failure to submit sign-in sheets, Mother has always been compliant with completing each task on the permanency plans. However, Ms. Burke was concerned with Mother's inconsistency; particularly, she was concerned that Mother "can maintain for a short term and she can do very well and she can be compliant with services; however it's concerning that there's been two custodial episodes within a short period of time."

         Julie Anna Dennis, the current family service worker, testified that she took over the case on March 8, 2016. At this point, the child was placed with Uncle and Aunt. Ms. Dennis received a call from Mother on March 28, 2016, informing her that Mother had been released from incarceration. As a result, a child and family team meeting and disruption meeting were both held on March 30, 2016. Ms. Dennis testified that adoption was added to the goals on the third permanency plan.

         Ms. Dennis testified that Mother's responsibilities under the third permanency plan remained unchanged but that the anger management class requirement from the second permanency plan had been removed. Ms. Dennis further testified that she explained to Mother her responsibility to keep DCS updated and to provide proof as she completed each step on the permanency plan. According to Ms. Dennis, Mother sent her proof of income, deposits into her bank account, attendance at Bible study classes, and a certificate of completion of an Eat Smart class to address the child's feeding issues. Ms. Dennis testified that Mother only provided proof of her attendance at recovery meetings through May 24, 2016. As a result, Ms. Dennis testified that she mailed Mother a copy of the permanency plan on June 21, 2016, reminding Mother that she needed to keep Ms. Dennis informed when any steps on the permanency plan had been completed. Ms. Dennis denied, however, that Mother made any contact with her in June 2016. Ms. Dennis acknowledged that Mother completed and submitted another mental health assessment done by Donise Clemmer in July 2016. Based on the assessment, Ms. Dennis was concerned that "short-term is easy to address but long-term sustainability is at issue." Ms. Dennis testified that she checked with Ms. Clemmer about Mother's participation in individual counseling. According to Ms. Dennis, Ms. Clemmer assured Ms. Dennis that she would "get a letter to present to the Court"; however, Ms. Dennis never received any confirmation as of the date of trial. Ms. Dennis testified that the most important requirements for Mother on the permanency plans were to address her mental health and substance abuse issues. When asked whether Mother had failed any drug screens administered by DCS, Ms. Dennis answered in the negative. Ms. Dennis recalled that Mother tested negative for all substances on the most recent hair follicle drug screen administered in August 2016.

         Ms. Dennis testified that the child no longer needs feeding therapy. Since the child had been moved into the current Foster Parents' home, the child has gained weight. Ms. Dennis described the child as being "very, very smart" and "doing very well" in school. According to Ms. Dennis, the child was making friends and participating in sports. Ms. Dennis testified that the child "is considerably ahead of the other children" in kindergarten.

         Foster Mother[6] testified that the child had been in her home twice, with the first occurring on September 4, 2015, and the second time on April 8, 2016. According to Foster Mother, the child had "behavioral issues, . . . feeding issues, emotional issues, [and] social issues" when he first came into her care. Foster Mother testified that the child was initially receiving behavioral therapy, family therapy, and feeding therapy. Although the child had been dismissed from feeding therapy, he still is participating in behavioral therapy. Foster Mother described the child's behavior as "defiant" after visits with Mother but then returning to normal behavior once he got back into a regular routine after the visits. Foster Mother testified that the child is doing very well in school and that he is ahead of his class. According to Foster Mother, if the child becomes available for adoption, she and her husband want to adopt the child. Although the child knows who his Mother is, Foster Mother testified that he does not seem to have a bonded relationship with her because "[h]e doesn't speak about her." Foster Mother denied that the child misses Mother. Foster Mother's testimony concluded DCS's proof.

         On the second day of trial, counsel for Mother announced that he received a text message from Mother that morning indicating that Mother was not going to be present that day at trial. Counsel for Mother rested his case because neither Mother nor Ms. Clemmer, the witnesses he had planned to call, was present in court. As a result, the guardian ad litem called Linda G. ("Grandmother") as a witness. Grandmother generally testified about how Mother's actions furthered the best interest of the child despite the fact that Grandmother does not appear to have been very close with either the child or Mother. After closing arguments, the trial court made an oral ruling to terminate Mother's parental rights on the grounds of abandonment by wanton disregard for the welfare of the child, persistent conditions, and substantial noncompliance with the ...


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