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In re Quintin S.

Court of Appeals of Tennessee, Knoxville

July 13, 2017

IN RE QUINTIN S., ET AL.

          Assigned on Briefs May 1, 2017

         Appeal from the Juvenile Court for Claiborne County Nos. 2012-JV-1106, 2015-JV-1560, 2016-JV-1701 Robert M. Estep, Judge

         The Department of Children's Services filed this petition to terminate the parental rights of the mother and two fathers of four children on various grounds. We affirm the termination of the parental rights of all three parents on multiple grounds, but reverse as to some of the grounds found by the trial court. We agree with the trial court's decision that termination of parental rights is in the best interest of the children.

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

          James Dallard Estep, III, Tazewell, Tennessee, for the appellant, Shawn H. Jordan Chandler Long, Knoxville, Tennessee, for the appellant, Christopher F. K., III. Mary Catherine O'Donnell, Blaine, Tennessee, for the appellant, Areia Y. K.

          Herbert H. Slatery, III, Attorney General and Reporter, Andrée Blumstein, Solicitor General, and Alexander S. Rieger, Deputy 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

         Factual and Procedural Background

         Areia Y.K. ("Mother") is the biological mother of the four children at issue in this parental termination appeal: Quintin S., born in March 2007; Aglacia H., born in June 2010; Zavera S., born in October 2012; and Christopher F.K., IV ("Christopher IV"), born in December 2014. The rights of two fathers are at issue in this appeal. Shawn H. is the legal father of Aglacia because his name appears on her birth certificate; and DNA testing established him as Zavera's biological father. Christopher K., III ("Christopher III"), is the legal father of Christopher IV because he was married to Mother at the time of Christopher IV's birth.[1]

         The Department of Children's Services ("DCS" or "the Department") first became involved with Mother and her children in 2012. When Zavera was born in October 2012, Mother admitted taking opiates without a prescription while pregnant, and the child was born with neonatal abstinence syndrome ("NAS"). The Department filed a petition to transfer temporary legal custody on November 9, 2012. Shawn H. was incarcerated, and the whereabouts of the father of Quintin S. were unknown. The juvenile court determined that the three children were dependent and neglected and awarded temporary custody to Lois R., the maternal grandmother. In March 2013, Mother was determined to be free of opiates, and the children were returned to her custody.

         On April 22, 2014, DCS once again brought Quintin, Aglacia, and Zavera into its custody and filed a petition for temporary legal custody the following day that includes the following pertinent allegations of dependency and neglect:

a. On April 22, 2014, CPSI Rachel Kilgore received a referral with allegations of drug exposed child. CPSI Kilgore met with Quinton [S.] at school. Quinton stated that he had not had a bath in a week and could not remember the last time he brushed his teeth because there is no running water in the home. He stated that he cannot flush the toilet and it has to stay dirty.
b. During the investigation and home visit, [Mother] consented to a urine drug screen. She tested positive for oxycodone and opiates. [Mother] admitted to snorting an oxycodone on 4/20/14 without a valid prescription.
c. [Christopher III] consented to a drug screen and tested positive for oxycodone. [Christopher III] admitted to orally [taking] a Percocet that he did not have a valid prescription for on 4/18/14.
d. Additionally, there is no running water in the home and no refrigerator.

         The Department requested that the children be taken into its custody and that they be found dependent and neglected at a final hearing.[2] A hearing was held on May 14, 2014, and the juvenile court entered an order on June 16, 2014 finding the children dependent and neglected.

         Christopher IV was born in December 2014. Christopher IV's umbilical cord blood tested positive for opiates; he was diagnosed with NAS and treated with morphine to alleviate his withdrawal symptoms. The Department immediately petitioned the juvenile court to take him into protective custody due to drug exposure.[3]

         On July 29, 2015, DCS filed a petition to terminate the parental rights of Mother, Shawn H., and Christopher III. The Department alleged the following grounds for termination: (1) abandonment by failure to visit (all parties); (2) abandonment by failure to support (all parties); (3) abandonment by incarcerated parent/failure to visit (Mother and Christopher III); (4) abandonment by incarcerated parent/failure to support (Mother and Christopher III); (5) abandonment by incarcerated parent/wanton disregard (Mother and Christopher III); (6) abandonment by failure to provide suitable home (Mother and Christopher III); (7) substantial noncompliance with permanency plan (all parties); (8) persistence of conditions (Mother and Christopher III); and (9) severe child abuse (all parties). The hearing took place over three days in August 2016. (We will discuss the testimony and evidence presented at trial below as pertinent to our analysis of the issues on appeal.) The trial court found that the following grounds for termination had been proven by clear and convincing evidence: Mother-grounds one through eight; Shawn H., with respect to Aglacia and Zavera-grounds one, two, and seven; and Christopher III, with respect to Christopher IV-grounds one, three, five, six, seven, and eight. The court also found that it was in the children's best interest for the parental rights of Mother, Shawn H., and Christopher III to be terminated.

         All three parents, Mother, Shawn H., and Christopher III, have appealed. In accordance with In re Carrington H., 483 S.W.3d 507, 525-26 (Tenn. 2016), this court "must review the trial court's findings as to each ground for termination and as to whether termination is in the child[ren]'s best interests, regardless of whether the parent challenges these findings on appeal."

         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, 250 (Tenn. 2010); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174-75 (Tenn. 1996). 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 v. Robertson, 871 S.W.2d 674, 678 (Tenn. 1994)). 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). First, a court must determine by clear and convincing evidence that at least one of the statutory grounds for termination exists. Tenn. Code Ann. § 36-1-113(c)(1); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). After a court makes this determination, a court must find by clear and convincing evidence that termination is in the best interest of the child. Tenn. Code Ann. § 36-1-113(c)(2); 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 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 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 by clear and convincing evidence the elements necessary to terminate parental rights. In re M.J.B., 140 S.W.3d at 654.

         Analysis

         I. Grounds For Termination

         A. Abandonment by failure to visit prior to filing of petition

         A parent's rights may be terminated upon proof by clear and convincing evidence that the parent "abandoned" his or her child. Tenn. Code Ann. §§ 36-1-113(c)(1), (g)(1). There are a number of different statutory definitions of abandonment. See Tenn. Code Ann. § 36-1-102(1)(A). Tennessee Code Annotated section 36-1-102(1)(A)(i) defines abandonment as follows:

For a period of four (4) consecutive months immediately preceding the filing of a proceeding or pleading to terminate the parental rights of the parent or parents or the guardian or guardians of the child who is the subject of the petition for termination of parental rights or adoption, that the parent or parents or the guardian or guardians either have willfully failed to visit or have willfully failed to support or have willfully failed to make reasonable payments toward the support of the child[.]

(Emphasis added). A court must find that the abandonment was "willful." Tenn. Code Ann. § 36-1-102(1)(A)(i). The statutory definition of "willfully failed to visit" is "the willful failure, for a period of four (4) consecutive months, to visit or engage in more than token visitation." Tenn. Code Ann. § 36-1-102(1)(E). Tennessee Code Annotated § 36-1-102(1)(C) defines "token visitation" as "perfunctory visitation or visitation of such an infrequent nature or of such short duration as to merely establish minimal or insubstantial contact with the child." To establish willfulness in this context, a petitioner must show that "a parent who failed to visit or support had the capacity to do so, made no attempt to do so, and had no justifiable excuse for not doing so." In re Adoption of Angela E., 402 S.W.3d 636, 640 (Tenn. 2013); see also In re Audrey S., 182 S.W.3d 838, 863-64 (Tenn. Ct. App. 2005) (stating that a person acts willfully if he or she knows what he or she is doing and has the intention to do what he or she is doing). "Whether a parent failed to visit or support a child is a question of fact. Whether a parent's failure to visit or support constitutes willful abandonment, however, is a question of law." In re Adoption of Angela E., 402 S.W.3d at 640 (citing In re Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn. 2007)). A parent will not be found to have abandoned his or her child if his failure to visit the child is not within his or her control. Id.

         Because Mother and Christopher III were incarcerated during the four months prior to the Department's filing of the petition for termination, DCS has conceded the ground of abandonment by failure to visit during the four-month period prior to the filing of the petition with respect to Mother and Christopher III. We agree that DCS has not established this ground by clear and convincing evidence as to Mother or Christopher III. We, therefore, reverse the trial court's termination of their parental rights on this ground.

         We proceed, then, to address this ground as to Shawn H. In this case, DCS filed the termination petition on July 29, 2015. Thus, the relevant time period under Tenn. Code Ann. § 36-1-102(1)(A)(i) is March 29 to July 28, 2015. Although Shawn H. was incarcerated for significant periods of time, he was out of jail from August 2014 to August 2015. Therefore, the four-month period set forth in Tenn. Code Ann. § 36-1-102(1)(A)(i) is the appropriate statutory ground applicable to him.

         During this period of time, Shawn H. visited his children only once, in June 2015. All of the permanency plans provide that the parents are entitled to at least 4.3 hours of visitation per month. Ashley Jennings, the case manager, testified that, after initially having only one four-hour visit per month, she altered the visitation schedule to allow the parents two two-hour visits per month. She sent each parent a letter outlining the details about visitation-location, dates, times, and the importance of being there on time.

          Shawn H. argues on appeal that he was only allowed eight supervised visits during the four months at issue and that one two-hour visit amounts to more than token visitation. We respectfully disagree. The record shows that, during the relevant four-month period, DCS allowed Shawn a total of sixteen hours of visitation, and he used only two. Moreover, the record contains evidence that his failure to participate in more than token visitation was willful. At the hearing, Shawn H. testified that he had problems with transportation because he lost his license. He could ride with his mother, but he had problems paying for the gas. Shawn H. also acknowledged that he could get a ride through ETHRA, [4] but he stated that he had trouble paying the "couple of dollars" required to use the service.

         The trial court found that Shawn H. had abandoned Aglacia and Zavera by a willful failure to visit pursuant to Tenn. Code Ann. § 36-1-102(1)(A)(i). We conclude that clear and convincing evidence supports this determination.

         B. Abandonment by failure to support prior to filing of petition

         Due to their incarceration, DCS has also conceded the ground of willful failure to support during the four-month period prior to the filing of the petition with respect to Mother and Christopher III. We agree that DCS failed to prove this ground of abandonment by failure to visit by clear and convincing evidence as to Mother or Christopher III. We, therefore, reverse the trial court's termination of their parental rights on this ground.

         Using the statutory definition of abandonment set forth above, we now address the ground of willful failure to support as to Shawn H. Pursuant to Tenn. Code Ann. § 36-1-102(1)(D), "willfully failed to support" or "willfully failed to make reasonable payments toward such child's support" means "the willful failure, for a period of four (4) consecutive months, to provide monetary support or the willful failure to provide more than token payments toward the support of the child." "[T]oken support" is defined to mean "that the support, under the circumstances of the individual case, is insignificant given the parent's means." Tenn. Code Ann. § 36-1-102(1)(B). Shawn H. was required to pay $100 per month per child ($200 per month) in child support. He concedes that he did not pay any child support for his two children.

         To prove abandonment by willful failure to support, DCS must prove by clear and convincing evidence that Shawn H. "had the capacity to pay support but made no attempt to do so and did not possess a justifiable excuse." In re Adoption of Angela E., 402 S.W.3d at 641. It is not enough for DCS to "'simply prove that [Father] was not disabled during the relevant timeframe' and therefore assume that [he] was capable of working and paying child support." In re Noah B.B., No. E2014-01676-COA-R3-PT, 2015 WL 1186018, at *9 (Tenn. Ct. App. Mar. 12, 2015) (quoting In re Josephine E.M.C., No. E2013-02040-COA-R3-PT, 2014 WL 1515485, at *18 (Tenn. Ct. App. Apr. 17, 2014)). According to the testimony of Shawn H., he applied during the relevant time period for jobs at restaurants, sawmills, and factories without success. He managed to pay his fines and court costs by working odd jobs, collecting scrap metal, and obtaining help from his mother. Shawn H. testified that he sometimes took morphine twice a week; he did odd jobs in exchange for the drugs or paid ten or fifteen dollars for the drugs. Shawn H. lived with his mother during this time period.

         Contrary to the Department's argument, we do not consider Shawn H.'s drug habit and payment of court fines sufficient evidence of a willful failure to support his children. The Department failed to present enough evidence to "'eliminate[] any serious or substantial doubt'" that Shawn H. had the ability to pay support and that his failure to support his children was, therefore, willful. In re Serenity B., 2014 WL 2168553, at *2 (quoting In re M.J.B., 140 S.W.3d at 653).

         We, therefore, reverse the trial court's termination of Shawn's H.'s parental rights on the ground of willful failure to support.

         C. Abandonment by failure to visit prior to incarceration

         The version of Tenn. Code Ann. § 36-1-102(1)(A)(iv) applicable to this case defines abandonment as follows:

A parent or guardian is incarcerated at the time of the institution of an action or proceeding to declare a child to be an abandoned child, or the parent or guardian has been incarcerated during all or part of the four (4) months immediately preceding the institution of such action or proceeding, and either has willfully failed to visit or has willfully failed to support or has willfully failed to make reasonable payments toward the support of the child for four (4) consecutive months immediately preceding such parent's or guardian's incarceration, or the parent or guardian has engaged in conduct prior to incarceration that exhibits a wanton disregard for the welfare of the child.

(Emphasis added).

         1. Mother

         Under Tenn. Code Ann. § 36-1-102(1)(A)(iv), the relevant time period for abandonment for willful failure to visit is the four-month period prior to Mother's incarceration. Mother argues that her brief incarceration on January 30, 2015 means that the relevant time period runs from September 28, 2014 to January 29, 2015. The Department asserts that a few hours in jail does not trigger Tenn. Code Ann. § 36-1-102(1)(A)(iv) and that the relevant time period runs from December 30, 2014 to April 30, 2015, which is the four months prior to Mother's incarceration from May 1 to May 28, 2015.

         In two previous cases involving the wanton disregard ground under Tenn. Code Ann. § 36-1-102(1)(A)(iv), this court "took the reasoned position . . . that a parent spending a few hours in jail does not rise to the level" necessary to qualify for the protections of the statute. In re Kaitlin W., No. E2015-01553-COA-R3-PT, 2016 WL 2931326, at *8 (Tenn. Ct. App. May 16, 2016) (citing In re Courtney N., No. E2012-01642-COA-R3-PT, 2013 WL 2395003, at *7 (Tenn. Ct. App. May 31, 2013)). We find that this reasoning likewise applies here to Mother's brief stay in jail on January 30, 2015. The case cited by Mother involves a period of incarceration lasting two days and is, therefore, distinguishable from the present case. See In re Eddie F., No. E2016-00547-COA-R3-PT, 2016 WL 7029285, at *4 n.6 (Tenn. Ct. App. Dec. 2, 2016) (measuring four-month time period for failure to support from mother's two-day incarceration). Thus, the relevant time period for purposes of determining Mother's abandonment by failure to visit during the four months prior to her incarceration is December 30, 2014 to April 30, 2015.

         During the relevant time period, Mother visited the children three times, once in February 2015 and twice in April 2015. Mother acknowledged that she received the letters from Ms. Jennings and knew that she had the opportunity to visit the children twice a month. When asked about her failure to exercise more visitation, Mother testified:

A. . . . I was struggling with my addiction and doing probation right [sic], so I knew if I went for a visit, I would be arrested.
Q. So you chose not to go see your children because you knew that you would be arrested?
A. Yeah.

         Mother argues that the trial court's finding that her failure to visit was willful is inconsistent with her request for relief from the trial court due to her dissatisfaction with the visitation offered. Unlike the present case, the case relied upon by Mother, In re Jakob O., No. M2016-00391-COA-R3-PT, 2016 WL 7243674, at *5 (Tenn. Ct. App. Dec. 15, 2016), involved a mother's efforts to reinstate visitation after the trial court's entry of an order suspending her visitation rights. While the In re Jakob O. appellate court found that the mother should not be assigned fault for failing to exercise visitation during the period of suspension, the court found no error in the trial court's determination that the mother's three visits during the three months after the reinstatement of visitation amounted to only token visitation. In re Jakob O., 2016 WL 7243674, at *6.

          In the present case, after a hearing on December 5, 2014 at which the court determined that DCS had not received proper notice, the trial court entered an order on December 18 stating, in pertinent part:

The mother informed the Court however that she was not getting her supervised visitation. When counsel for the Department was reached via teleconference, counsel for the Department could not dispute the mother's allegations as her client was not available to question. Therefore, the Court ordered the Department to create a visitation plan by December 15, 2014 or a plan would be created by the Court. The supervised visitation will occur at the Morristown Mall play area.
The supervised visitation plan emailed to counsel on 12/9/14 is as follows:
December 16, 2014: 5:00PM-7:00PM
December 30, 2014: 5:00PM-7:30PM
January 13, 2015: 5:00PM-7:00PM
January 27, 2015: 5:00PM-7:30PM
February 10, 2015: 5:00PM-7:00PM
February 24, 2015: 5:00PM-7:30PM

         In an affidavit of reasonable efforts dated September 10, 2015, Ms. Jennings stated that, on February 10, 2015, she set up the following additional visits with the parents: March 9, 2015; March 23, 2015; April 7, 2015; and April 21, 2015. Out of the nine visits set up for Mother during the relevant time period, Mother attended only three, and the trial court found that Mother's visits constituted only "token visitation." The evidence does not preponderate against this finding, which supports the trial court's conclusion that, pursuant to Tenn. Code Ann. § 36-1-102(1)(E), the failure to visit was willful.

         We conclude that there is clear and convincing evidence to support the termination of Mother's parental rights on the ground of abandonment by willful failure to visit during the four-month period prior to incarceration pursuant to Tenn. Code Ann. § 36-1-102(1)(A)(iv).

         2. Christopher III

         Christopher III testified that he was incarcerated for theft for approximately two to three days in June 2015, but there is nothing in the record to establish the exact dates of his incarceration. Citing In re Addison B., No. M2014-02265-COA-R3-PT, 2015 WL 2258232, at *2 (Tenn. Ct. App. May 13, 2015), Christopher III emphasizes the fact that the trial court never identified an exact period of incarceration. We do not find this distinction to be important. Even if we assume that Christopher III was incarcerated at the beginning of June 2015, there is no dispute that he attended only two visits (both in April 2015) during the preceding four-month period, February to May 2015.

          As stated above, DCS offered the parents two visits per month. Thus, Christopher III attended only two of eight visits available to him during the relevant four-month time period. At the hearing, Christopher III testified that he did not have a driver's license and found ETHRA not to be dependable. As a result, he chose to ride his bicycle to visits. According to Christopher III, Ms. Jennings did not assist him with transportation and never offered him a ride. Ms. Jennings testified that Christopher III "wanted to do everything on his own." She stated that, if Christopher III asked her for help, she would provide help.

         The trial court determined that Christopher III's visitation prior to his incarceration was "token at best." The evidence does not preponderate against this finding. Pursuant to Tenn. Code Ann. § 36-1-102(1)(E), therefore, his failure to visit was willful. There is clear and convincing evidence to support the trial court's termination of Christopher III's parental rights on the ground of abandonment by willful failure to visit during the four-month period prior to incarceration pursuant to Tenn. Code Ann. § 36-1-102(1)(A)(iv).

         D. Abandonment by failure to support prior ...


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