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In re Seth B.

Court of Appeals of Tennessee, Knoxville

September 14, 2017

IN RE SETH B., ET AL.

          Assigned on Briefs August 1, 2017

         Appeal from the Juvenile Court for Sevier County No. 16-000175, 16-000176, 16-000178, 16-000179 Dwight E. Stokes, Judge.

         This is a termination of parental rights case. Mother/Appellant appeals the termination of her parental rights to the minor children on the grounds of: (1) abandonment by an incarcerated parent by wanton disregard; (2) abandonment by willful failure to provide a suitable home; (3) failure to substantially comply with the reasonable requirements of the permanency plan; and (4) persistence of the conditions that led to the children's removal from Mother's home. Mother also appeals the trial court's finding that termination of her parental rights is in the children's best interests. Father/Appellant appeals the termination of his parental rights to the minor children on the grounds of: (1) abandonment by willful failure to provide a suitable home; (2) failure to substantially comply with the reasonable requirements of the permanency plan; and (3) persistence of conditions that led to the children's removal from Father's home. Father also appeals the trial court's finding that termination of his parental rights is in the children's best interests. Because grounds for termination of both Mother's and Father's parental rights are met by clear and convincing evidence, and there is also clear and convincing evidence that termination of Mother's and Father's parental rights is in the best interests of the children, we affirm.

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

          Robert L. Huddleston, Maryville, Tennessee, for the appellant, Antwoine O.; and Elizabeth A. Brady, Sevierville, Tennessee, for the appellant, Elizabeth E.

          Herbert H. Slattery, III, Attorney General and Reporter; and Brian A. Pierce, 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 concerns four minor children, Seth B. (d.o.b. January 2003), Darius E. (d.o.b. May 2005), Damian O. (d.o.b. March 2008) and Seriah O. (d.o.b. January 2011) (together "the Children").[1] Elizabeth E. ("Mother") is the mother of all four children. Antwoine O. ("Father") is the father of Damian O. and Seriah O. Mother and Father were never married, [2] but Father is listed on Damian O.'s and Seriah O.'s birth certificates and has held himself out as their father.[3] Mother and Father have been in an on-again-off-again relationship for eleven (11) years. Although Seth B. and Darius E. are not Father's biological or adopted children, he considers himself to be their father.[4] As discussed, infra, all of the children have behavioral issues, which require individual therapy.

         The Department of Children's Services' ("DCS" or "Appellee") removed the Children from Mother and Father's custody on November 5, 2014. When Child Protective Services ("CPS") investigators arrived at the motel where the family was living, they observed unsuitable living conditions. Mother tested positive for methamphetamine, suboxene, and marijuana. Father was not present when investigators arrived, but, when CPS investigators were able to drug test him, he had a clean screen. By order of November 7, 2014, the Sevier County Juvenile Court ("trial court") granted temporary custody of the Children to DCS.

         By order of December 17, 2014, the trial court adjudicated the Children to be dependent and neglected, finding, in relevant part, that:

Upon the evidence presented, statements of counsel and the record as a whole, the [c]ourt finds that clear and convincing evidence has been established pursuant to T.C.A. § 37-1-129(c) to show that the [C]hildren are dependent and neglected within the meaning of the law; that removal of the [C]hildren is required pursuant to T.C.A. § 37-1-114(2); that there is no less drastic alternative to removal; that it is contrary to the [C]hildren's welfare to remain in the care, custody or control of the parent(s); and that clear and convincing evidence has been established to show that that [sic] the [C]hildren are dependent and neglected for the following additional reasons: at the time of the removal, all four of the children were in the care and custody of their mother, [Elizabeth E.], and [Antwoine O.], the father of Damian & [sic] Seriah. On 11-5-2014 [sic], the Department's case managers, Bree McGrane and James Bradley arrived at the family home . . . responding to a referral of drug exposed child(ren). Mother, who appeared disoriented at the time of the interview, met the case managers and acknowledged that she would test positive on a drug screen for Suboxene. [Mother] submitted to a urine drug screen and did test positive for Meth, Suboxene, and THC. [Mother] informed the case managers that [Father] had been using Meth and Suboxene with her.
Mother had recently been admitted in-patient to Peninsula for five days to address her mental health needs.
[Father] had recently lost his job but as of November 5, 2014 he was working with a friend, cleaning cabins. The case manager(s) spoke to him on the telephone and he acknowledged that if he took a drug screen he would test positive for THC and maybe a pain pill. When he did arrive at the home and consent to a drug screen, his urine was clear and he tested negative for all substances.
The case managers observed the home to be in poor conditions; [sic] i.e. the home was filled with roaches, dirty dishes, limited food for the [C]hildren, and refuse lying about the home.

         During the pendency of this case, there were two DCS case managers assigned to the family, Maureen DiRoma and Katie Rudder. Ms. DiRoma was the initial case manager, and Ms. Rudder took over as case manager when Ms. DiRoma left DCS in April 2016. DCS worked with Mother and Father to establish two permanency plans. The first permanency plan was entered on December 2, 2014, and the second permanency plan was entered on August 10, 2015. Both plans were later ratified by the trial court.

         Concerning the services DCS provided, the record shows that DCS contracted with Holston Home in July 2015 to provide services to the parents and the Children. Tommy Delbridge was the caseworker from Holston Home assigned to the family. DCS also assisted Mother and Father in obtaining a suitable home in August 2016, but the parents were soon evicted from this home for failing to pay rent. Both parents lived a transient lifestyle during the pendency of this case, and neither parent could provide evidence that he or she was able to maintain stable, legal employment for more than a few consecutive weeks. Throughout these proceedings, Mother has continued to struggle with her drug addiction. Father has left Mother on occasion only to return. He has continued to give Mother money to support her drug habit. Father testified that after receiving a settlement in a personal injury case, he gave the money to Mother, and she used it to buy drugs.

         On February 4, 2016, DCS filed its petition to terminate Mother and Father's parental rights. DCS sought termination of Mother's parental rights on the grounds of: (1) abandonment by wanton disregard by an incarcerated parent; (2) abandonment by incarcerated parent by failure to support;[5] (3) abandonment by failure to provide a suitable home; (4) substantial noncompliance with the permanency plan; and (5) persistence of conditions. DCS sought termination of Father'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) persistence of conditions.

         Mother's drug addiction and unaddressed mental health issues and Father's inability to separate himself from her for the benefit of the Children are the primary concerns in this case. Even after filing the petition to terminate parental rights, DCS continued to work with the Appellants. Mother was in rehab four (4) times during the pendency of this case. At the time of trial, Mother was still struggling with drug addiction. During the first day of testimony, Mother was in withdrawal from methamphetamine.[6] The second day of trial Mother testified by telephone from a rehabilitation facility. While Father made strides to separate himself from Mother, in his testimony, he indicated that he could not leave her for more than two weeks. At the November 23, 2016 trial, Father testified that he had employment and had been living in Ohio for two weeks. Prior to trial, Father failed to mention his move or employment status to DCS.

         By order of January 23, 2017, the trial court terminated Mother's parental rights on the grounds of: (1) abandonment by an incarcerated parent by wanton disregard; (2) abandonment by willful failure to provide a suitable home; (3) failure to substantially comply with the reasonable requirements of the permanency plan; and (4) persistence of the conditions that led to the Children's removal from Mother's home. The trial court terminated Father's parental rights on the grounds of: (1) abandonment by willful failure to provide a suitable home; (2) failure to substantially comply with the reasonable requirements of the permanency plan; and (3) persistence of conditions that led to the Children's removal from Father's home. The trial court also found, by clear and convincing evidence, that termination of Appellants' parental rights was in the Children's best interests. Mother appealed on January 23, 2017, and Father appealed on January 24, 2017. Both Appellants signed their notices of appeal. Tenn. Code Ann. § 36-1-124(d).

         II. Issues

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

1. Whether the trial court erred in terminating Mother's parental rights on the ground of abandonment by wanton disregard by an incarcerated parent?
2. Whether the trial court erred in terminating Mother's parental rights on the ground of abandonment by failure to provide a suitable home?
3. Whether the trial court erred in terminating Mother's parental rights on the ground of substantial noncompliance with the permanency plan?
4. Whether the trial court erred in terminating Mother's parental rights on the ground of persistence of conditions?
5. Whether the trial court erred in finding that termination of Mother's parental rights is in the best interests of the Children?

         Father raises four issues as stated in his brief:

1. Whether the trial court properly found that the ground for termination of parental rights for abandonment due to failing to provide a suitable home by [Father] was shown by clear and convincing evidence, with specific reference to the requirement that the Department must provide reasonable efforts equaling or exceeding that of a parent within the requisite time period?
2. Whether the trial court properly found that the ground for termination of parental rights for noncompliance with the permanency plans by [Father] was shown by clear and convincing evidence?
3. Whether the trial court properly found that the ground for termination of parental rights for persistent conditions was shown by clear and convincing evidence?
4. Whether the trial court properly concluded that it was in the best interests of the children to have the parental rights of [Father] terminated at this time, with specific reference to the lack of pre-adoptive home in this case?

         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), perm. app. denied (Tenn. July 12, 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.

         In light of the heightened standard of proof in termination of parental rights cases, a reviewing court must modify the customary standard of review in Tennessee Rule of Appellate Procedure 13(d). 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 must 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 of Parental Rights

         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

         The trial court found, by clear and convincing evidence, that Mother's parental rights should be terminated on the ground of abandonment by an incarcerated parent by wanton disregard and failure to provide a suitable home pursuant. Tenn. Code Ann. § 36-1-113(g)(1); Tenn. Code Ann. § 36-1-102(1)(A)(ii); and Tenn. Code Ann. § 36-1-102(1)(A)(iv). The trial court found, by clear and convincing evidence, that Father's parental rights should be terminated on the ground of abandonment by failure to provide a suitable home. 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 ...

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