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In re Isabella G.

Court of Appeals of Tennessee, Nashville

October 3, 2017

In re ISABELLA G. et al.

          August 22, 2017 Session

         Appeal from the Juvenile Court for Rutherford County No. TC2512T Donna Scott Davenport, Judge

         Parents 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.

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

          Carl 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.

          W. Neal McBrayer, J., delivered the opinion of the court, in which Andy D. Bennett, J., and J. Steven Stafford, P.J., W.S., joined.

          OPINION

          W. NEAL McBRAYER, JUDGE

         I.

         A. Factual and Procedural Background

         Kimberly 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.

         On May 8, 2014, DCS received a second referral alleging drug exposure of the children.[1] On this occasion, DCS located the parents and children in an extended stay hotel. Both parents tested positive for oxycodone, opiates, and benzodiazepines.

         Because of the parents' drug use and environmental concerns, DCS referred the family for the Therapeutic Intervention, Education, and Skills or "TIES" program.[2]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 five.

         On 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.

         Unable 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 teeth.

          On 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.

         In 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 DCS's custody.

         On 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.

         B. Proof at the Hearing

         1. Permanency Plans

         Following 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 filed.

         At 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 support system.

         The 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.

         Even 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 mid-December 2015.

         A DCS caseworker testified Father was arrested on September 27, 2014.[3]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 filed.

         Progress 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.

         Mother 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.[4]

         Mother 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.

         Between 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.

         2. Parents' Visitation and Relationship with the Children

         Mother 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.

         Although 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.

         In 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.

         In 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 visibly upset.

         Mother 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 visits.

         C. The Juvenile Court's Ruling

         On June 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 ...


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