Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Douglas H.

Court of Appeals of Tennessee, Nashville

September 29, 2017

IN RE DOUGLAS H. [1]

         Session: July 11, 2017

         Appeal from the Circuit Court for Robertson County No. 74CC1-2015-CV-354 Ross H. Hicks, Judge

         The legal custodians of Mother's two children filed this petition to terminate her parental rights to the children on grounds of abandonment and severe child abuse. We affirm the termination of Mother's parental rights to both children on at least one ground, but reverse as to some of the grounds found by the circuit court. We agree with the circuit court's decision that termination of Mother's parental rights is in the best interest of the children.

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

          H. Garth Click, Springfield, Tennessee, for the appellant, Mollie H.

          Jennifer L. E. Williams, Springfield, Tennessee, for the appellees, Jeffrey P. and Jessica P.

          Andy D. Bennett, J., delivered the opinion of the Court, in which Frank G. Clement, Jr., P.J., M.S., and Richard H. Dinkins, J., joined.

          OPINION

          ANDY D. BENNETT, JUDGE

         Factual and Procedural background

         This case involves termination of the parental rights of Mollie H. ("Mother") to two of her children, Douglas H., born in September 2013, and Tailor H., born in August 2015. Although neither child's birth certificate identifies a father, all the parties in this action stipulated that Howard H.[2] is Douglas's biological father and Derek M.[3] was Tailor's biological father.

         Mother has a lengthy history of drug abuse that began as early as age sixteen. Shortly after Mother gave birth to Douglas, she began using methamphetamine daily and continued to do so through October 2014. On October 1, 2014, police responded to Mother's residence where they found Douglas and Mother with methamphetamine-producing paraphernalia. They arrested Mother, and she pled guilty to a Class D felony for unlawfully and feloniously permitting her home to be used for the manufacture of methamphetamine.

         Following Mother's arrest, the Tennessee Department of Children's Services ("DCS") removed Douglas from Mother's custody due to allegations of drug exposure and environmental neglect resulting from an active methamphetamine lab located in Mother's residence. Mother tested positive for methamphetamine, amphetamine, and ecstasy at the time of the removal. Two days later, on October 3, 2014, DCS filed a petition in the Montgomery County Juvenile Court asking the court to find Douglas dependent and neglected and severely abused. DCS placed Douglas in the home of Jessica P. and Jeffrey P. ("the Petitioners") pursuant to an Immediate Protection Agreement ("IPA").[4] By executing the IPA, Mother agreed to complete several services requested by DCS, including alcohol and drug treatment, resolution of all pending criminal charges, stable employment, and random drug screens. Unfortunately, Mother continued to use drugs and struggled to comply with the requirements of the IPA. For example, between October 2014 and January 2015, Mother submitted to three drug screens and tested positive for methamphetamine and/or amphetamine and refused to submit to at least four drug screens. Mother also repeatedly cancelled visits with Douglas during this time.

         In late 2014, Mother entered inpatient drug treatment but left without completing the program. She moved to Texas shortly after visiting Douglas on January 6, 2015. While Mother resided in Texas, she attempted no visits with Douglas but continually reported she would return to Tennessee. The juvenile court heard DCS's dependency and neglect petition on April 20, 2015. The court found by clear and convincing evidence that Douglas was dependent and neglected and the victim of severe child abuse. The juvenile court granted the Petitioners temporary legal custody of Douglas. Mother failed to attend the dependency and neglect hearing because she was incarcerated in Texas for shoplifting. She appealed the juvenile court's decision in order to obtain a de novo hearing.[5]

         On June 4, 2015, the Petitioners filed a petition in the Robertson County Circuit Court for termination of Mother's parental rights and for adoption in regard to Douglas only. Thereafter, Mother returned to Tennessee and gave birth to Tailor in August 2015. DCS removed Tailor from Mother's custody directly from the hospital because Mother tested positive for methamphetamine when Tailor was born. Following the removal, DCS placed Tailor in the home of the Petitioners with her half-sibling, Douglas, pursuant to a second IPA. The second IPA required that Mother complete the same services identified in the first IPA and added that she continue receiving services to address her mental health issues.[6]

         On August 11, 2015, DCS filed a petition in the Montgomery County Juvenile Court to find Tailor dependent and neglected and severely abused. While DCS's petition was pending in the juvenile court, the Petitioners filed an amended termination and adoption petition in the circuit court as to Douglas on December 16, 2015.[7] Mother continued to use drugs and struggled to complete the tasks in the IPA during this time. In fact, by April 20, 2016, Mother still had not completed any of the tasks in the IPA. She successfully completed one inpatient drug treatment program but failed to follow through with treatment recommendations. She submitted to drug screens and tested positive for illegal substances on at least three occasions; the last occurred in February 2016 when Mother tested positive for marijuana. Mother failed to respond to at least two requests for drug screens.

         The juvenile court heard DCS's petition on May 9, 2016 and adjudicated Tailor dependent and neglected based upon clear and convincing evidence, with a stipulated agreement by Mother to only dependency and neglect. The juvenile court made no findings on the issue of severe abuse.[8] Nine days later, on May 18, 2016, the Petitioners filed the first petition in the circuit court for termination of Mother's parental rights and for adoption in regard to Tailor. The Petitioners filed a final amended petition for termination of Mother's parental rights and adoption as to both children on June 21, 2016. Upon motion of the Petitioners, the circuit court consolidated the pending termination of parental rights and adoption cases for both children on July 5, 2016. On that same day, the circuit court also entered an order reflecting the parties' agreement on the terms of Mother's visitation with the children. The order permitted Mother to have supervised visitation with the children for one hour every other Saturday, provided that Mother submitted a negative drug screen on the Friday prior to the visit.

         On September 22 and 28, 2016, the circuit court conducted a trial on the consolidated termination of parental rights and adoption cases. Agent Kyle Darnell, the lead clandestine lab investigator for the 19th judicial district drug task force, testified as the agent who responded to the crime scene at Mother's home on October 1, 2014. He testified as an expert witness due to his experience from working 200 clandestine labs as a clandestine lab technician since 2007. When asked to describe the scene at Mother's residence, Agent Darnell testified that, when he entered Mother's home, "there was standing water in the apartment" and "there were electrical cords plugged into outlets." Agent Darnell further testified that law enforcement found an active methamphetamine lab and various drug paraphernalia inside a backpack in the home where Mother resided with Douglas. He opined that the entire residence had been exposed to the methamphetamine manufacturing process, and he concluded that Douglas was undoubtedly exposed to the manufacture of methamphetamine while residing in the home.

         Misha Daniels, the DCS worker assigned to Tailor's case, testified that Mother tested positive for drugs on several occasions, repeatedly refused to submit to drug screens, and infrequently visited the children. Ms. Daniels further testified that Mother reported obtaining employment and stable housing but did not provide DCS with any proof of her claims. Ms. Daniels stated that Mother remained noncompliant with the DCS-requested services at the time of trial.

         Mother testified at length during the trial. She acknowledged her extensive history of drug abuse and that she used drugs within a month or two of Tailor's birth despite knowing she was close to delivering a child; however, she testified that she had not used drugs since October 2015. Mother further acknowledged her arrest in Tennessee for manufacturing methamphetamine and her incarceration in Texas for shoplifting. She conceded that she resided in at least twelve different residences since Douglas was born, and that she did not have a residence of her own at the time of trial. Mother testified that she lived with and paid rent to Darrell J., who tested positive for drugs. She acknowledged that she had not been compliant with her mental health treatment because she had not taken medication as prescribed and consistently failed to attend her mental health appointments. Mother testified, however, that she began regularly attending mental health appointments during the months preceding trial. She admitted that she failed to support her children financially following their removal from her custody.

         Petitioner Jessica P. testified that the children are happy, well-adjusted, and bonded to the Petitioners. She further testified that the children resided in a stable, loving home where they knew only the Petitioners as parents. According to Jessica P., she maintained a calendar of the children's visits with Mother showing that Mother consistently missed visits and often arrived late when she did visit.

         The circuit court entered an order on November 16, 2016 terminating Mother's parental rights to the children. The circuit court found clear and convincing evidence of the existence of five statutory grounds for termination of Mother's parental rights to Douglas: (1) abandonment by willful failure to visit during the four months prior to the filing of the original petition, (2) abandonment by willful failure to support during the four months prior to the filing of the original petition, (3) abandonment by willful failure to visit during the four months prior to the filing of the amended petition, (4) abandonment by willful failure to support during the four months prior to the filing of the amended petition, and (5) severe child abuse. The circuit court found clear and convincing evidence of the existence of three statutory grounds for termination of Mother's parental rights to Tailor: (1) abandonment by willful failure to visit during the four months preceding the filing of the original petition, (2) abandonment by willful failure to support during the four months preceding the filing of the original petition, and (3) severe child abuse.

         On appeal, Mother presents three issues for our review. Those issues can be consolidated into two issues and restated as follows: (1) whether the trial court erred in finding by clear and convincing evidence that grounds existed to terminate Mother's parental rights, and (2) whether the trial court erred in determining that termination of Mother's parental rights was in the best interest of the children.

         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, 249-50 (Tenn. 2010); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174-75 (Tenn. 1996) (citing Nale v. Robertson, 871 S.W.3d 674, 678 (Tenn. 1994)). 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, 871 S.W.2d at 678). Our legislature has enumerated the grounds upon which termination proceedings may be brought. See Tenn. Code Ann. § 36-1-113(g). The existence of any one of the enumerated grounds will support a termination of parental rights. In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

         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). Consequently, a court must determine by clear and convincing evidence both that grounds for termination exist and that termination is in the best interest of the child. Tenn. Code Ann. § 36-1-113(c); 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)).

         In light of the heightened standard of proof required in termination of parental rights 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 the existence of one or more grounds for termination by clear and convincing evidence. In re M.J.B., 140 S.W.3d at 654.

         Analysis

         I. Grounds for Termination

         A. Abandonment

         The circuit court terminated Mother's rights to both children pursuant to Tenn. Code Ann. § 36-1-113(g)(1), which provides that a parent's rights may be terminated if the parent abandoned his or her child. Tennessee Code Annotated section 36-1-102 provides several definitions of "abandonment" as a ground for termination of parental rights. In this case, the Petitioners specifically alleged that Mother abandoned both children by her willful failure to visit and her willful failure to support "as defined in Tenn. Code Ann. § 36-1-102(1)(A)(i)." This subsection of the statute 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[.]

Tenn. Code Ann. § 36-1-102(1)(A)(i). A key component of the foregoing definition of abandonment is the willfulness of the parent's conduct. In re Audrey S., 182 S.W.3d 838, 863 (Tenn. Ct. App. 2005). 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. ยง 36-1-102(1)(E). Tennessee Code Annotated section 36-1-102(1)(C) defines "token visitation" as "perfunctory visitation or visitation of such an infrequent ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.