In re ISABELLA G. et al.
22, 2017 Session
from the Juvenile Court for Rutherford County No. TC2512T
Donna Scott Davenport, Judge
appeal the termination of their parental rights to their two
children. The juvenile court found clear and convincing
evidence of five grounds against the father and three grounds
against the mother and that termination of parental rights
was in the children's best interest. DCS concedes on
appeal that persistence of conditions was not an appropriate
ground for terminating mother's parental rights and that
abandonment by failure to visit was not an appropriate ground
for terminating father's parental rights. We agree. As to
the remaining grounds, we conclude that DCS failed to prove
abandonment by failure to provide a suitable home and
persistence of conditions as to the father. But the record
contains clear and convincing evidence to support the grounds
of abandonment for wanton disregard for the welfare of the
children and substantial noncompliance with the requirements
of the permanency plans as to both parents. We further
conclude that the record contains clear and convincing
evidence that termination is in the children's best
interest. Thus, we affirm the termination of parental rights.
R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
Court Affirmed as Modified
Moore, Murfreesboro, Tennessee, for the appellant, Kimberly
N. Brandon M. Booten, Murfreesboro, Tennessee, for the
appellant, Daniel G.
Herbert H. Slatery III, Attorney General and Reporter, and
Jordan K. Crews, Assistant Attorney General, for the
appellee, Tennessee Department of Children's Services.
Neal McBrayer, J., delivered the opinion of the court, in
which Andy D. Bennett, J., and J. Steven Stafford, P.J.,
NEAL McBRAYER, JUDGE
Factual and Procedural Background
N. ("Mother") and Daniel G. ("Father")
are the parents of Isabella G. and Jaxson G., born in
November 2012 and October 2013, respectively. Almost from the
moment of Jaxson's arrival, the Tennessee Department of
Children's Services ("DCS") was involved with
the couple and their children. Jaxson tested positive for
opiates at birth. But DCS closed its investigation after it
was unable to locate the parents.
8, 2014, DCS received a second referral alleging drug
exposure of the children. On this occasion, DCS located the
parents and children in an extended stay hotel. Both parents
tested positive for oxycodone, opiates, and benzodiazepines.
of the parents' drug use and environmental concerns, DCS
referred the family for the Therapeutic Intervention,
Education, and Skills or "TIES"
program.Among other things, the program required
the parents to complete an alcohol and drug assessment and
submit to random drug screens. After the initial drug screen,
from May 2014 through July 2014, Mother failed three out of
three random drug screens, while Father failed two out of
August 19, 2014, DCS received another referral regarding the
children, this time for abandonment. Mother was incarcerated,
and Father and the children had moved in with his mother, the
children's paternal grandmother, and her husband. Father
had left, according to his mother, to be with Mother upon her
release from jail, but he had been gone for two days.
Father's mother did not want to continue to care for the
children without Father's participation.
to locate the parents or to find other possible family
placements for the children, DCS removed the children from
the home. At the time of removal, Jaxson had eczema all over
his body, and carpet pieces were embedded into his skin.
Isabella had severe dental problems, which ultimately
required six crowns and four composite restorations for her
August 22, 2014, in the Juvenile Court for Rutherford County,
Tennessee, DCS filed a petition for dependency and neglect
and for emergency temporary legal custody of the children.
The court issued an ex parte protective custody order that
same day. The court did allow the parents, who by this time
had been located, a minimum of four hours of supervised
visitation per month conditioned upon passing a drug screen
prior to the scheduled visit.
separate hearings due to the parents' incarceration, the
court adjudicated the children dependent and neglected.
Father stipulated that the children were dependent and
neglected due to his residential instability, financial
instability, and incarceration. Mother stipulated that the
children were dependent and neglected due to residential
instability, financial instability, and drug exposure. Both
parents also agreed that the children should remain in
August 26, 2015, DCS filed a petition to terminate parental
rights of both Mother and Father to their two children. The
petition alleged five statutory grounds: abandonment for
failure to visit by an incarcerated parent, abandonment by
wanton disregard for the welfare of the children by an
incarcerated parent, abandonment for failure to provide a
suitable home, substantial noncompliance with the permanency
plans, and persistence of conditions. The juvenile court
conducted a trial on the petition over the course of four
days in March 2016.
Proof at the Hearing
the children's removal, DCS, with the parents'
participation, developed three permanency plans. The first
permanency plan was created on September 5, 2014, with the
goal of returning the children to the parents. The second
permanency plan, developed approximately six months later on
March 4, 2015, added a second goal, adoption. While the
parents participated in the development of the second plan,
they objected to adding adoption of the children as a goal.
The third and final permanency plan was developed on
September 3, 2015, after the termination petition had been
trial, Father acknowledged that he made no progress toward
fulfilling the requirements of the permanency plans until the
fall of 2015. In Father's words, "I would absolutely
own that I did nothing for the first year" after removal
of his children. Mother also acknowledged that she did not
get much accomplished after her children were removed. Both
parents attributed their lack of progress on the requirements
of the first and second plans to homelessness and lack of a
parents remained homeless the first year of the
children's removal into state custody. But Mother and
Father were also in and out of jail. Prior to the
children's removal into state custody, Mother pled guilty
to two counts of fraudulently using a credit card over $1,
000 and one count of driving under the influence.
after the children's removal into state custody, Mother
continued to engage in criminal behavior. From November 2014
through June 2015, Mother was arrested for and pled guilty to
forgery between $1, 000 and $10, 000; attempted forgery
between $1, 000 and $10, 000; indecent exposure; and three
separate instances of public intoxication. Mother's
probation was revoked on August 20, 2015, and she was
sentenced to serve six months. She was released from jail
caseworker testified Father was arrested on September 27,
2014.According to Father, he realized that he
was addicted to alcohol when he got "arrested four times
in a six-month span, " from March to July 2015, for
public intoxication and indecent exposure. Although one
public intoxication charge was eventually dismissed, Father
pled guilty to two charges of public intoxication and one
charge of indecent exposure during this time. Father was
incarcerated from July 24 until August 12, 2015, shortly
before the petition for termination of parental rights was
toward fulfillment of permanency plan requirements only
really began after the petition for termination of parental
rights was filed. Father became involved with "Doors of
Hope, " a program for individuals reentering society
after incarceration, following his release from jail. He
began living at the Doors of Hope halfway house, and in
September 2015, he started a job.
completed parenting classes in November 2015 while she was in
jail. Upon her release from jail, Mother began living in a
Doors of Hope shelter for women. By late January 2016, with
the assistance of Doors of Hope, Mother and Father moved into
a partially furnished, two-bedroom/two-bath townhouse. And,
on February 1, 2016, they entered into a one-year lease for
the property with a third-party.
and Father continued working on their permanency plan
responsibilities even after trial had already begun. On March
14, they submitted a modified budget, which reflected income
from the job Mother started in January. Parents also
submitted paycheck stubs from February and March.
the second and third days of trial, Mother and Father
purchased a car. The majority of funds for the purchase came
from charitable contributions. Mother also completed an
intensive outpatient program for substance abuse.
Parents' Visitation and Relationship with the Children
and Father visited the children only sporadically, either
because they failed drug screens prior to the scheduled
visit, they were incarcerated, or visits were cancelled
because of sickness or the weather. Mother and Father at
times would not reschedule the missed visits, which were
required to be supervised. At a minimum, Mother and Father
were entitled to two monthly visits of two hours each,
provided that each could pass a drug screen.
the children were removed on August 19, 2014, visitation did
not begin until October 2014 because of failed drug screens.
Both parents attended Isabella's dental surgery in
October 2014, and Father had an additional visit with the
children in the same month. No visit occurred in November
because both parents were incarcerated. Both parents visited
in December 2014 but were late.
2015, Father visited from February through April. He did not
have another visit until October 2015. Father had two visits
in November 2015. Mother, on the other hand, had no visits
with the children in 2015.
February 2016, both Mother and Father visited with the
children. The children were hesitant to go to Mother because
they had not seen her since December 2014. When the older
child, Isabella, referred to her foster parents as
"mommy" and "daddy, " Father became
and Father admitted that they had paid no child support.
According to Mother, she had the ability to pay since January
2016 but that she had not been asked to pay any support.
Father testified that, in 2015, he brought presents and a
card for Jaxson for his birthday but not Isabella's,
which occurred a month later. Father also testified that he
bought the children presents for Christmas 2015 but never
gave them to the children because something happened with the
Juvenile Court's Ruling
24, 2016, the court reconvened for the purpose of announcing
its ruling, findings of fact, and conclusions of law. Before
announcing its decision, Mother's counsel orally
requested to reopen the proof so that Mother could show her
progress in the three months since proof had been closed. DCS
opposed the request. Because Mother's ...