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In re Michael B.

Court of Appeals of Tennessee, Knoxville

August 11, 2017

IN RE MICHAEL B., JR., ET AL

          Appeal from the Juvenile Court for Washington County No. 46-509, 46-510 Sharon M. Green, Judge

         The trial court found clear and convincing evidence to terminate Mother's parental rights to her two children on the grounds of abandonment by failure to establish a suitable home, substantial noncompliance with permanency plans, and persistence of conditions. The trial court also found clear and convincing evidence that termination was in the children's best interest. Discerning no error, we affirm.

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

          Holly L. Booksh, Johnson City, Tennessee, for the appellant, Felicia A.

          Herbert H. Slatery, III, Attorney General and Reporter; W. Derek Green, Assistant Attorney General, for the appellee,

          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

         On December 23, 2015, Petitioner/Appellee the Tennessee Department of Children's Services ("DCS") filed a petition to terminate the parental rights of Felicia A. ("Mother") to her children, Michael B. and Melody B., [1] born in 2003.[2] The petition alleged that the juvenile court had entered an order awarding DCS temporary legal custody of the children on January 7, 2015 and subsequently found the children to be dependent and neglected by order of March 16, 2015. The petition alleged grounds of abandonment by failure to establish a suitable home, substantial noncompliance with permanency plans, and persistence of conditions.

         The trial court thereafter appointed a guardian ad litem for the children and an attorney for Mother. On June 2, 2016, Mother filed a response in opposition to the termination petition. A trial took place over three days in December 2016 and January 2017. Two permanency plans drafted by DCS, agreed to by Mother, and ratified by the trial court were entered as exhibits. The first plan, created and ratified in April 2015, required that Mother: (1) complete a clinical parenting assessment, inform DCS of the results, follow all recommendations, and provide documentation of any completion of recommendations to DCS; (2) attend visitation and display "learned parenting skills"; (3) complete a psychological assessment, share the results with DCS, follow all recommendations, and provide documentation of any completion of recommendations to DCS; (4) complete an alcohol and drug assessment, inform DCS of the results, follow all recommendations, and provide documentation of any completion of recommendations to DCS; (5) complete intensive outpatient alcohol and drug treatment and follow any recommendations from any drug treatment program; (6) submit to random drug screens; (7) obtain legal income or government assistance to provide for the children; (8) obtain documentation regarding any medical issues that would prevent employment; (9) seek help from DCS to apply for disability; and finally, (10) participate in homemaker services provided by DCS and provide a safe and clutter-free home for the children. A second parenting plan was created in August 2015 and ratified in October 2015. This plan generally contained the same requirements for Mother, with the addition of obtaining additional mental health, teen parenting, and anger management counseling.

         Nine DCS workers, service providers, or therapists testified on behalf of DCS regarding their involvement with the family. First, Julie Lowry, a DCS investigator and former assessment worker, testified that Mother and the children first became involved with DCS in 2012, but that case was ultimately closed. The instant matter instead began in July 2014 when DCS received a referral regarding the condition of the family's home and the children not attending school due to having head lice. Throughout DCS's involvement, Mother lived in a home owned by Mother's father and later inherited by Mother.[3] Ms. Lowry conducted ten home visits of Mother's home between July 2014 and January 2015. During these visits, Ms. Lowry and other workers observed dog feces and garbage throughout the home, roaches and other bugs, mold, excessive clutter, gaps in the walls of the home, lack of food, and lack of heat in some places.

         Another DCS worker visited the home after the removal of the children, Jessica Trivette. Of Ms. Trivette's ten attempted visits, Mother cancelled or was not present for at least half of the visits.[4]Ms. Trivette testified that when she was able to view the home, its condition was largely unchanged, with some improvement that later "digressed." Indeed, it was undisputed at trial that the home currently had no working electricity.

         The final DCS caseworker to be placed on this case, Diana McKamey, testified that she made eight unsuccessful attempts to inspect the home in 2016. Ms. McKamey made one successful home visit in September 2016; during this visit, the electricity in the home did not work and Ms. McKamey observed that the home was dirty, that there were "lots of bugs, " and that old food was left on the porch of the home.

         Much of the DCS workers' testimony concerned their inability to maintain contact with Mother. Over the course of the time of DCS's involvement, Mother had several telephone numbers and sometimes resided with her sister or brother for months at a time. DCS workers and service providers testified that they called and texted Mother's numbers, as well as the numbers for Mother's fiancé, father, and sister, often to no avail. On multiple occasions, DCS workers went to Mother's home. Because Mother was often not home, [5]they left notes for Mother. Sometimes, Mother would make contact with DCS following these attempts; sometimes Mother would not. Ms. Trivette testified that although Mother maintained consistent contact with her shortly following the removal of the children in January 2015, her ability to successfully contact Mother waned. As such, Ms. Trivette testified that she was completely unable to speak with Mother between April 28, 2015 and June 17, 2015, despite repeated attempts. Shortly before trial on the termination petition began, Ms. McKamey also testified that she struggled to reach Mother. When she did contact mother in November 2016 and made recommendations, Mother rebuffed Ms. McKamey's suggestions as "crap" that Mother did not need. Although Mother was informed that a family team meeting was taking place days before the trial in December 2016, Mother refused offers for transportation assistance and did not attend the meeting.

         Several DCS workers also testified about Mother's drug abuse. Mother was administered a number of drug tests over the years of DCS's involvement. Although Mother sometimes passed drug tests, DCS workers testified that Mother failed drug screens both prior to the removal of the children and later in January 2015, April 2015, March 2016, and December 2016, variously for marijuana, oxycodone, lortab, amphetamines, cocaine, opiates, bonxoylecgonine, morphine, oxymorphine, oxycodone, and hydrocodone. Frequently, Mother also failed to report for scheduled drug testing. In October 2015 and March 2016, Mother admitted to using illegal drugs. Even at the time of trial at the end of January 2017, Mother admitted that she likely could not pass a drug test because she had used marijuana three weeks prior. Mother claimed to have prescriptions for some of the medications for which she tested positive, but DCS workers testified that they never received proof of the prescriptions and no documentation was submitted during trial to support Mother's claims.

         In order to combat Mother's mental health and substance abuse issues, DCS provided Mother with several assessments, which were completed by Mother, and several treatment options, none of which had been successfully completed by the time of trial. After Mother's completion of an alcohol and drug assessment in April 2015, it was recommended that Mother attend intensive outpatient alcohol and drug treatment. Mother enrolled in a program in April 2015, but terminated her participation that summer stating that the program "was not for me." Mother also successfully completed a clinical parenting assessment in April 2015. A psychological assessment was scheduled for early April 2015, but Mother did not appear. The assessment was eventually completed in June 2015.

         Pursuant to the recommendations from the assessments, DCS set up in-home alcohol and drug treatment services for Mother, beginning in August 2015. Mother was required to simply be home to receive the services when scheduled. Despite this minimal effort required of Mother, Mother was home to complete services only for four out of ten scheduled services. As such, the service provider testified that Mother made no significant progress. These services were terminated in September 2015 due to Mother's noncompliance. Although services were reauthorized by DCS in September 2016-this time to be completed inpatient-the service provider testified that he was unable to obtain contact with Mother to initiate the services. Mother testified that her failure to complete services with this provider related to her dislike of the service provider, who she claimed attempted to perform services at inappropriate times and locations.

         DCS also referred Mother to three different inpatient drug treatment programs after Mother admitted to relapsing in October 2015. DCS first referred Mother to the Magnolia Ridge treatment program where Mother was placed on the waiting list. At trial, Mother claimed to still be on the waiting list even though years had passed. When asked what effort Mother had made to attend treatment at Magnolia Ridge, Mother admitted that she had not really thought about it for some time. In the same month, Mother left a second treatment program, scheduled to take at least twelve days to complete, after two days due to medical issues; Mother never returned. Mother claimed that she attempted to return but was unable to do so because there was a miscommunication regarding her transportation. After this missed attempt, however, it does not appear that Mother made another effort to return to this program. Mother blamed her failure to make additional effort to return on the death of her father, which occurred approximately two months later in January 2016. As previously discussed, DCS authorized Mother's attendance at another inpatient program in September 2016, but Mother missed her first appointment and thereafter failed to reschedule the appointment or otherwise maintain contact with the service provider.

         Due to the issues with Mother's home, DCS also provided Mother with homemaker and parenting services through Foundations for Life Principles, beginning in April 2015. Rebecca Roosa, who began working with Mother in September 2015, testified that her purpose was to help Mother with cleaning and de-cluttering the home, managing medications, applying for jobs, obtaining transportation or learning to use public transportation, filing for disability benefits, going to mental health appointments, and helping Mother regain electricity in the home. Foundations for Life also provided Mother with parenting education. In order to receive these services, Mother only had to be available in her home. Nevertheless, Mother often missed appointments and Ms. Roosa was unable to maintain consistent contact with Mother. Foundations for Life services were eventually terminated in December 2015 based on Mother's noncompliance.

         At trial, Mother testified that her substance abuse issues stemmed from mental issues related to grief and stress. Mother denied, however, that she was "self-medicating." Mother identified several stressful events during the course of DCS's involvement in this case, including: (1) the death of Mother's sister in February 2015; (2) the death of Mother's father in January 2016; (3) Mother's unplanned pregnancy in the spring of 2016; and (4) the death of Mother's infant in September 2016. According to Mother, she had not had time to grieve the death of her child and she was unable to make progress due to the stressful events in her life. At the time of trial, Mother testified that she had recently enrolled in motivational and parenting classes and had begun case management at a mental health facility. Mother testified, however, that she had attended only a single class at the time of her testimony.

         Mother indicated that she was not currently employed and that at the time of the final day of trial, over four months had passed from the death of her child, with very little progress made on the tasks required to be completed by Mother. Mother stated that she suffered from a serious condition often affecting her health, but did not testify that this condition made her unable to maintain employment. Indeed, Mother testified that she had worked for approximately one month at a fast food restaurant and that she was planning to begin working at another restaurant soon. Mother admitted that her home currently had no electricity and indeed had not had working electricity as early as May 2016. Around May 2016, Mother testified that she became aware that she pregnant unexpectedly, which caused her some mental health issues. Due to the pregnancy and the lack of electricity, Mother spent considerable time in the summer of 2016 living with her brother or sister. At this time, DCS workers had difficulty contacting Mother. Mother testified, however, that she was home approximately three nights per week and that she informed DCS of her temporary move, albeit later in the summer of 2016. Mother also stated that she would be able to turn on the electricity in the home once she received her tax return in early 2017.

         With regard to income at the time of trial, Mother testified that she sometimes works as a care-giver for adults and that her fiancé works as well. Additionally, prior to his death, Mother testified that her father helped her financially. Mother admitted that despite being required to do so in the permanency plan, she had not paid child support for the children.

         Mother testified that she consistently attended visitation until the terms were changed making it more difficult to schedule the visits. At trial, the evidence showed that other than a few missed or rescheduled visitations, Mother had visited with the children often and typically consistently. Mother and those who witnessed visitation both testified that Mother had a strong and loving bond with the children. A service provider who witnessed visitation testified that Mother sometimes brought others to the visitation, but stopped this behavior when asked. The service provider also testified that Mother sometimes spoke of topics such as the litigation and was required to be redirected. The service provider admitted, however, that often the children had to be redirected from certain topics as well. Based solely on the visits, the service provider provided Mother with periodic progress reports indicating that there were no safety issues that would prevent reunification. The service provider also testified that there was no impediment to unsupervised visitation with the children should the termination petition not be granted.

         The children's therapists and foster mother both testified about the children's progress after their removal. The children's therapists both testified that the children were making progress, but still had issues that required consistent therapy. Michael's therapist indicated that his need for stability was great and that he needs things to be settled with Mother "one way or the other." Melody's therapist testified that she suffers from stress related to being removed from her biological family and that her treatment focuses on accepting the circumstances as they are. Although Melody was only placed in therapy after the removal, Mother had engaged a therapist for Michael while he was still in her custody to treat his attention deficit hyperactivity disorder.

         The children's therapeutic foster mother testified that she was trained to provide additional in-home therapeutic care for the children. Although there had been an issue with Michael's behavior that had caused the children to be removed from foster mother's care for a time, the children had returned to foster mother's care, in part because the children wanted to return. Foster mother testified that the children were making improvements and that her family was open to adopting the children should termination be granted. Foster mother testified that the children are doing well and making improvements, but that they are disappointed when Mother misses scheduled telephone calls or is distracted by other individuals during the phone calls. At least once, foster mother testified that she believed Mother to be under the influence during a phone call.

          At the conclusion of trial, the trial court orally ruled in favor of DCS. Thereafter, on February 9, 2017, the trial court entered a detailed and thorough order finding that DCS had established clear and convincing evidence of Mother's failure to establish a suitable home, Mother's substantial noncompliance with permanency plans, and persistence of conditions. The trial court likewise found clear and convincing evidence that termination was in the children's best interests.

         Issues Presented

Mother raises four issues in this case, which we summarize:
1. Whether the trial court erred in finding clear and convincing evidence that grounds existed to terminate Mother's parental rights.
2. Whether the trial court erred in finding clear and convincing evidence that termination was in the children's best interest.

         Analysis

According to the Tennessee Supreme Court:
A parent's right to the care and custody of her child is among the oldest of the judicially recognized fundamental liberty interests protected by the Due Process Clauses of the federal and state constitutions. Troxel v. Granville, 530 U.S. 57, 65 (2000); Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption of Female child, 896 S.W.2d 546, 547-48 (Tenn. 1995); Hawk v. Hawk, 855 S.W.2d 573, 578-79 (Tenn. 1993). But parental rights, although fundamental and constitutionally protected, are not absolute. In re Angela E., 303 S.W.3d at 250. "'[T]he [S]tate as parens patriae has a special duty to protect minors . . . .' Tennessee law, thus, upholds the [S]tate's authority as parens patriae when interference with parenting is necessary to prevent serious harm ...

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