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In re Liam S.

Court of Appeals of Tennessee, Knoxville

October 4, 2017

In Re LIAM S., et al.[1]

          Session June 21, 2017

         Appeal from the Juvenile Court for Jefferson County No. 16-00423 Dennis Roach, II, Judge.

         This appeal involves the termination of a mother and father's parental rights to their two minor children. Following a bench trial, the trial court found that clear and convincing evidence existed to support the termination of each parent's parental rights on the statutory grounds of abandonment for failure to provide a suitable home, substantial noncompliance with the requirements of the permanency plan, and the persistence of conditions which led to removal. Relative to Mother, the court found clear and convincing evidence existed to support the additional grounds of abandonment for failure to visit and to pay child support. The court further found that termination of each parent's rights was in the best interest of the children. The parents appeal. We affirm the trial court's judgment as to grounds for termination but vacate the trial court's judgment as to the best interest of the children and the trial court's judgment terminating the mother and the father's parental rights.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed in Part and Vacated in Part; Case Remanded

          Gregory E. Bennett, Seymour, Tennessee, for the appellant, Katie L.

          Daniel Hellman, Knoxville, Tennessee, for the appellant, Erin S.

          Herbert H. Slatery, III, Attorney General and Reporter, and Jordan K. Crews, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee, Department of Children's Services.

          John W. McClarty, J., delivered the opinion of the Court, in which Charles D. Susano, Jr., J. and D. Michael Swiney, C.J., joined.

          OPINION

          JOHN W. McCLARTY, JUDGE.

         I. BACKGROUND

         Liam S. was born to Katie L. ("Mother") and Erin S. ("Father") (collectively "the Parents") in 2009. Mother and Father never married. Jonah L. was born in 2012. Father was not listed on Jonah's birth certificate; however, Mother identified him as the father, and he also held himself out as the father.

         The Parents first became involved with the Tennessee Department of Children's Services ("DCS") in January 2014, at which time the Parents entered into a non-custodial permanency plan to address issues of drug abuse, mental health, domestic violence, inadequate parenting skills, and unstable housing. The following month, on February 20, 2014, DCS received another referral based upon the same allegations. On that day, the Parents were also arrested for traffic offenses and possession of drug paraphernalia. Mother tested positive for oxycodone, opiates, marijuana, and suboxone, while Father tested positive for oxycodone, opiates, and marijuana. Liam and Jonah ("the Children") were later adjudicated as dependent and neglected. Mother was sentenced in October 2014 to 6 years for aggravated burglary, 2 years each for 2 counts of theft, and 11 months and 29 days for possession of drug paraphernalia. Her concurrent sentences were suspended to supervised probation following the service of 120 days in jail. She was also required to complete a drug and alcohol assessment and comply with recommendations and to submit to random drug screens.

         Several permanency plans were entered, each of which contained the following requirements for each parent: (1) submit to drug screens and pill counts; (2) complete mental health and alcohol and drug assessments and follow recommendations; (3) complete parenting, anger-management, and domestic violence classes and follow recommendations; (4) maintain safe and stable housing; (5) obtain a legal source of income and transportation; and (6) pay child support. The Parents participated in the development of the initial plan that remained unchanged with the exception of the added goal of adoption in August 2015.[2] DCS later withdrew the requirements that Mother participate in anger-management and domestic violence classes.

         DCS paid for services from June 2014 through July 2015. While the Parents completed some requirements, DCS could no longer provide funding because the Parents failed to follow recommendations from their assessments and to demonstrate a lasting change. Specifically, Mother completed her alcohol and drug assessment in June 2014 but failed to follow the recommendations by attending intensive education. She later relapsed and resumed illegal drug use. She also refused drug screens in Spring 2015 and failed to submit to hair follicle testing as requested until June 2016. Relative to Father, he tested positive for marijuana in July 2015 and failed to submit to a hair follicle test as requested until July 2016. He also failed to complete the parenting component of his alcohol and drug assessment and to attend an education program.

         Mother attended multiple drug treatment programs but failed to successfully combat her addiction until she enrolled in Life Changers, a 12-month faith-based discipleship program, in September 2015. It is not a licensed drug treatment facility. However, Mother lived on campus and was required to submit to random drug screens. DCS transported the Children to the Life Changer's facility for visitation. Mother was unable to attend two of the scheduled four visitations during the time period due to her placement on disciplinary probation. Mother also only made one child support payment of $62.82 on June 11, 2015. She was not permitted to work outside the facility while enrolled in the program.

         DCS filed a petition to terminate each parent's parental rights on May 20, 2016, based upon the statutory grounds of abandonment for failure to provide a suitable home, substantial noncompliance with the permanency plan, and the persistence of conditions which led to removal. Relative to Mother, DCS alleged the additional grounds of abandonment for failure to visit and to pay child support.

         The case proceeded to a hearing in October 2016. Much of the testimony presented related to Mother's repeated attempts to overcome her addiction. Mother conceded that DCS had provided her with a list of housing resources in the four months following the removal of the Children. She explained that she did not pursue suitable housing because of her ongoing addiction at the time. She provided that during the relevant time period, she lived with different people who also abused drugs.

         Mother testified that she attended multiple drug treatment programs and relapsed following completion of those programs. However, Mother testified that her participation in the Life Changer's program helped her to finally defeat her "active addiction." She noted that she had not failed a drug screen while attending the program. She conceded that she would be unable to care for the Children until she graduated and then completed an additional 90-day aftercare program. She further conceded that she had been demoted as a result of the stress of these proceedings, thereby delaying her graduation. She claimed that despite the delay, she was set to graduate in a few weeks following the hearing. She agreed that she had not remitted payment for child support during the relevant time period even though she was capable of obtaining employment. She noted that she was not permitted to obtain employment outside of the program.

         Jessica Deskins, a director of Life Changers, and Ken Gilliam, pastor and attorney for Life Changers, spoke highly of Mother and attested to her progress since her entry into the program. They conceded that she had received "disciplinary write-ups" but explained that she had improved and shown significant progress. Ms. Deskins further provided that Mother would be eligible for transitional housing upon completion of the after-care program. Mr. Gilliam provided that Mother currently worked in a Life Changer's retail store he managed. He claimed that she was an exemplary employee.

         Relative to the Children, the record established that they responded well to their current foster home, which provided a calm, structured, and supportive environment. Foster Mother testified that the Children have resided with her and her husband since March 2015. She expressed love for the Children and indicated a desire to adopt them. She provided that they called her and her husband mom and dad but also admitted that they referred to the Parents as mom and dad. She stated that the Children never asked for the Parents but acknowledged that they talked about their activities upon returning from visitation and appeared as if they enjoyed the visitation. She provided that they were sometimes "hard to calm down" and "get to sleep" on visitation days. She claimed that Liam also had nightmares on a few occasions following visitation.

         Father admitted his drug abuse and his inability to provide suitable housing for the Children at the time of removal. He agreed that DCS may have provided him with a list of resources to assist him in obtaining suitable housing but asserted that he found housing without help from DCS. He provided that he had appropriate housing and that he lived with a roommate. He asserted that the roommate was leaving his residence at the time of the hearing and further claimed that he never planned to house the roommate with the Children upon their return. He stated that he maintained stable employment with an income of $1, 200 per month and that he was planning to fix his vehicle but had access to other transportation when necessary.

         Father claimed that he completed a number of the permanency plan requirements. He alleged that DCS failed to assist him in his completion of the remainder of the permanency plan requirements and that services were later abruptly stopped. He agreed that he had not completed an alcohol and drug education program as a required recommendation from his assessment and that he failed to complete additional parenting education. He claimed that he was unable to afford the classes and education required and that DCS refused his request for financial assistance. He conceded that at one time, he advised DCS that he would pay for services himself.

         Donna Mitchell, who was employed by Covenant Counseling, testified that she provided counseling services for Father in his home in June and July 2015. She recalled reviewing his mental health and alcohol and drug assessments with him. She provided that she recommended intensive outpatient treatment following a failed drug screen in July 2015. She asserted that he minimized his drug abuse and did not indicate intent to remain clean and sober once the Children were returned. She stated that services were discontinued after he failed the drug screen.

         Glenda Walthers, a DCS employee assigned to the case, testified that DCS only approved services for those actively completing the requirements of his or her permanency plans. She stated,

There is a whole chain of persons that have to approve the spending of that money. I have to take it to the team leader. I have to take it to the team coordinator. And then after a certain amount of time when services have been lingering and no completion has been done by the parents, no demonstration that we're close to getting - you know, all of that has to be justified; all of that has to be looked at.

         Ms. Walthers admitted that Mother completed her assessments and provided certificates of completion for anger management and domestic violence classes but that Mother never showed a "significant demonstration of a change that was brought on by completion" of her classes. She explained that the Parents remained involved, despite the volatile nature of their relationship while Mother completed the anger management and domestic violence components of the permanency plan. She agreed that Mother completed an alcohol and drug assessment and attended a co-occurring psycho-educational program with Helen Ross-McNabb but provided that Mother later relapsed, necessitating a new assessment and completion of an alcohol and drug treatment program. She stated that Mother never completed a new assessment or attended a licensed drug treatment program. She further claimed that Mother did not have reliable transportation or housing at the time of the hearing.

         Ms. Walthers acknowledged that Mother's failure to complete a new assessment and to obtain transportation or housing was likely a result of her enrollment in the Life Changer's program. She agreed that Mother found success in the program and had remained drug free for approximately one year. She further acknowledged that she no longer had reason to believe that the Parents maintained an unhealthy relationship. However, she expressed concern about Mother's ability to remain stable outside of the structured environment provided by Life Changers. She explained that an actual alcohol and drug treatment program would provide her with the skills necessary to excel outside of a structured environment. She acknowledged that Mother made plans to remain involved with Life Changers for ongoing support and that Mother even expected an offer of employment at the time of her completion of the program.

         Relative to each parent's failure to provide a suitable home, Ms. Walthers testified that Father had a roommate who had not passed a background check at the time of the hearing. Additionally, Father could not provide the roommate's last name. She noted that the Children were removed, in part, because the Parents exposed them to inappropriate people and even lived with roommates that also used drugs. She provided that Mother would be unable to provide a suitable home for at least another 90 days following her completion of the program.

         Relative to visitation, Ms. Walthers provided that Mother was afforded one four-hour visit per month and that DCS transported the Children to Life Changers for visitation once Mother enrolled in the program. She asserted that Mother only visited twice during the relevant time period, once in February and again in April 2016. She explained that Life Changers denied visitation on two occasions because Mother had been placed on probationary status at Life Changers. She agreed that Mother faithfully attended visitation when not on probationary status even before her entry into the Life Changer's program. She further agreed that Mother's visits with the Children were appropriate with only a few minor issues since the time of removal.

         Relative to child support, Ms. Walthers provided that Mother did not remit payment during the relevant time period. She conceded that Mother was not permitted to work while enrolled in the Life Changer's program but asserted that Mother chose to enroll in the program and remain there, despite the fact that her visitation and ability to remit child support were affected by her enrollment.

         Relative to the Children, Ms. Walthers claimed that the Children had significant behavioral issues at the time of removal. She asserted that the Children required structure and routine, especially Liam who had been diagnosed with attention deficit hyperactivity disorder. She expressed concern about Mother's ability to raise them and provide the structure and consistency necessary for them to thrive. She claimed that a disruption in their current environment could negatively affect their progress.

         Following the hearing, the trial court found clear and convincing evidence to support termination of Mother's parental rights based upon abandonment for failure to remit child support, to visit, and to provide a suitable home; substantial noncompliance with the permanency plan; and the persistence of conditions which led to removal. The court also found clear and convincing evidence to support termination of Father's parental rights based upon abandonment for failure to provide a suitable home; substantial noncompliance with the permanency plan; and the persistence of conditions which led to removal. The court further found that termination of each parent's parental rights was in the best interest of the Children. This appeal followed.

         II. ISSUES

         We consolidate and restate the issues ...


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