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In re Eric G.

Court of Appeals of Tennessee, Knoxville

October 25, 2017

IN RE ERIC G.[1]

          Session Date: August 8, 2017

         Appeal from the Juvenile Court for Sevier County No. 16-001096 Dwight E. Stokes, Judge

         In this termination of parental rights case, a mother appeals the termination of her rights to her son on the grounds of abandonment by failure to establish a suitable home, persistence of conditions, and mental incompetence and upon the finding that termination was in the child's best interest. Upon our review, we discern no error and affirm the judgment of the juvenile court.

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

          Gregory E. Bennett, Seymour, Tennessee, for the appellant, Judith A. G.

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

          Richard H. Dinkins, J., delivered the opinion of the court, in which Charles D. Susano, Jr., and Thomas R. Frierson, II, JJ., joined.

          OPINION

          RICHARD H. DINKINS, JUDGE

         I. Factual and Procedural History

         Eric G. was born in June 2001 to Judith G. ("Mother") and Richard G. ("Father"). On January 23, 2014, the Department of Children's Services ("DCS") initiated a proceeding in the Sevier County Juvenile Court to have Eric declared dependent and neglected because he had not been enrolled in school since 2009, he was "severely autistic and non-verbal, " and it would be in his best interest "to remain in the home of his mother subject to protective supervision by this Court and in compliance with the counseling, treatment, and other conditions and limitations . . . ." The petition requested that the court, inter alia, find Eric to be dependent and neglected and order Mother to: immediately enroll Eric in school; allow DCS access to her home and comply with in-home services; and complete a mental health evaluation and follow any recommendations. That same day Mother was ordered to allow DCS representatives access to inspect her home and to "immediately enroll [Eric] in school."

         On February 4, 2014, the guardian ad litem filed an emergency motion to place Eric in state custody, alleging that Mother's mental health issues and stated unwillingness to comply with DCS requests "place[d] the child at great risk" and that Eric was "educationally neglected" and "medically neglected in the mother's care." The court held a hearing on February 5 on the petition that DCS had filed on January 23 and held that DCS established probable cause that Eric's removal from the home was required; the court entered an emergency custody order, placing Eric in the temporary legal and physical custody of DCS and granting Mother and Father visitation. Thereafter, DCS placed the child at Norris Academy.[2] Further hearings were held on March 5 and May 1, after which the court adjudicated Eric to be dependent and neglected due to Mother's failure to comply with school attendance laws and to provide Eric with recommended speech, occupational and physical therapy.

         On October 2, 2015, pursuant to an emergency motion filed by the guardian ad litem reporting that Mother's visitation privileges had been permanently revoked at the Academy, the court suspended Mother's visitation at Norris Academy. The court permitted DCS to "facilitate the Mother's visitation with the child under strictly supervised conditions within the Sevier County Department of Children's Services offices." The order also permitted the guardian ad litem to temporarily suspend further contact between Mother and Eric if inappropriate behavior was observed by or reported to him. On October 15 the guardian ad litem filed a notice of suspension of Mother's visitation based on a DCS psychologist's opinion that it was in Eric's best interest to suspend visitation for his "developmental, emotional, and psychological safety." The court entered a detailed order on November 30, 2015, suspending Mother's visitation.

         In the course of the dependent and neglect proceeding, three permanency plans were developed and ratified by the court. The first was developed by the DCS team in February 2014 with the goal of "return to parent." This plan required Mother, among other things, to: complete a mental health assessment and follow the recommendations; complete a parenting assessment; and participate in family therapy to learn appropriate skills needed to meet Eric's special needs and demonstrate them on a consistent basis. Mother and her attorney were present in the meeting at which the plan was developed and, on the page entitled "Agreements, " Mother acknowledged that the plan had been discussed with her. She checked the box indicating that she did not agree with the plan and included the handwritten notation that "I disagree with all the false accusations on the plan against me as parent and me as an individual and a human being. They have also reported that I made statements that I didn't make on these pages." The plan was ratified in May 2014. The second plan was developed in July 2015 with the added goal of adoption. Mother and her counsel were present during the meeting in which the plan was developed, and on the "Agreements" page Mother acknowledged that the plan had been discussed with her. She checked the box indicating she did not agree with the plan; in the box where she was to explain her "no" answer, she wrote "MANY LIES ON THIS." The plan was ratified in October 2015 and required Mother to, among other things, sign a release of information so DCS could obtain a copy of her mental health assessment and resulting recommendations, to apply for Social Security, and to "work with Sevier County Housing Authority to retain her public housing." The third plan was developed in June 2016 with the sole goal of adoption and ratified in August; it retained the responsibilities in the prior plans. Mother is listed in the plan as participating in the team meeting by phone and "not available to sign"; her attorney was present, as was the guardian ad litem.

         On August 1, 2016, DCS filed a petition to terminate Mother's parental rights on the grounds of mental incompetence, abandonment by failure to provide a suitable home, and persistence of conditions; the petition also alleged that termination was in Eric's best interest.[3]

         Trial was held on December 2, 2016; Mother was not present. The day before, Mother had filed a motion to continue the trial, asserting that her physical and emotional health "is not such that she should be required to undergo the rigors of a termination hearing at the present time." Prior to commencing the trial, Mother's counsel argued that a continuance was necessary because "it has been reported by my client to me that my client suffers from the following: . . . pressure thyroid issues, . . . previous heart attacks, elevated pulse, serious and chronic upper and lower gastrointestinal problems, . . . [and] that the most recent fires in Sevier County have caused . . . her breathing issues to be affected." After hearing from counsel for DCS and the guardian ad litem, the court denied the motion and proceeded to hear testimony.

          Cassandra Phillips, a case manager, and Katherine Rudder and Jan Gardner, family services workers, testified on behalf of DCS. Leigh Anne Goldstine, a licensed professional counselor who provided supervision during weekly therapeutic visitation between Mother and Eric at Norris Academy, and Cathie Haviland, a therapist at Norris Academy who provided individual therapy for Eric and family therapy for Eric and Mother, were also called to testify by DCS; Dr. Shannon Wilson, a psychologist who evaluated Mother in May 2015, testified by deposition. Mother presented no proof.

         On January 10, 2017, the court entered an order terminating Mother's parental rights on the grounds of abandonment by failure to establish a suitable home, persistence of conditions, and mental incompetence; the court also held that it was in Eric's best interest for Mother's rights to be terminated. Mother appeals, asserting that the grounds for termination and the holding that termination of her rights is in Eric's best interest are not supported by clear and convincing evidence. She also asserts that the court denied her due process of law by failing to grant her motion for a continuance of the trial.

         II. Standard of Review

         Parents have a fundamental right to the care, custody, and control of their children. Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Adoption of A.M.H., 215 S.W.3d 793, 809 (Tenn. 2007). However, that right is not absolute and may be terminated in certain circumstances. Santosky v. Kramer, 455 U.S. 745, 753-54 (1982); State Dep't of Children's Services v. C.H.K., 154 S.W.3d 586, 589 (Tenn. Ct. App. 2004). The statutes on termination of parental rights provide the only authority for a court to terminate a parent's rights. Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004). Thus, parental rights may be terminated only where a statutorily defined ground exists. Tenn. Code Ann. § 36-1-113(c)(1); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In re M.W.A., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998). To support the termination of parental rights, only one ground need be proved, so long as it is proved by clear and convincing evidence. In the Matter of D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003).

         Because the decision to terminate parental rights affects fundamental constitutional rights and carries grave consequences, courts must apply a higher standard of proof when adjudicating termination cases. Santosky, 455 U.S. at 766-69. A court may terminate a person's parental rights only if (1) the existence of at least one statutory ground is proven by clear and convincing evidence and (2) it is shown, also by clear and convincing evidence, that termination of the parent's rights is in the best interest of the child. Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H., 215 S.W.3d at 808-09; In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). In light of the heightened standard of proof in these cases, a reviewing court must adapt the customary standard of review set forth by Tenn. R. App. P. 13(d). In re M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct. App. 2004). As to the court's findings of fact, our review is de novo with a presumption of correctness unless the evidence preponderates otherwise, in accordance with Tenn. R. App. P. 13(d). Id. We must then determine whether the facts, "as found by the trial court or as supported by the preponderance of the evidence, clearly and convincingly establish the elements" necessary to terminate parental rights. Id. In this regard, clear and convincing evidence is "evidence in which there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence" and which "produces a firm belief or conviction in the fact-finder's mind regarding the truth of the facts sought to be established." In re Alysia S., 460 S.W.3d 536, 572 (Tenn. Ct. App. 2014) (internal citations omitted).

         III. Analysis

         A. Motion to Continue

         Mother argues that the trial court denied her right to due process of law in not granting a continuance of the trial. She concedes that the motion, which was filed the day before trial, did not comply with the local rules of court, because she did not attach a written statement of a physician when seeking a continuance based upon illness.[4] In presenting the motion, her counsel stated that he had requested a medical excuse from the doctor whose name Mother had provided as her primary care physician but that no excuse had been provided.

         Mother's counsel argued that the motion should be granted "to allow [Mother] to be treated" for various illnesses, including "pressure thyroid issues, previous heart attacks, an elevated pulse, serious and chronic upper and lower gastrointestinal problems" and "breathing issues" due to "the recent wild fires that occurred in Sevier county." Counsel for DCS opposed the motion, arguing that "this is an ongoing trend where the mother tries to delay Court hearings, . . . requests to reschedule Court hearings, requests to reschedule meetings to the point that even when the Department's worker goes to pick her up at her house, she's not ready and delays, delays, delays"; counsel advised the court that "[w]e actually have a voice mail from [Mother] yesterday which relates some of the same information that her attorney did . . . [and] gives the impression that she has not planned on coming to this f[or] months." In like manner the guardian ad litem stated "[t]his is an ongoing issue. Clearly, [Mother] is going to be under stress and anxiety during this. She has been throughout every, every court appearance. . . . However she hasn't been able to provide any medical necessity to why she would need to be specifically excused today." The court denied the motion, ruling:

[I]n regard to her condition, it seems like she's had ongoing issues we've known about for a few years in dealing with this case. It does not appear to be anything that's particularly new or anything that there is a doctor saying that she cannot go forward with the hearing or the trial. There's not any medical documentation at all. Does not appear to be anything that can be expected to change or that could not be raised at any time. In other words, prior heart attacks or prior heart issues with nothing imminent. Nothing specific in the gastrointestinal. Again, nothing appearing imminent or there's no doctor excuse. And all other medical conditions, the same situation. So, I don't see anything that's really going to change with that. This has been a long-standing date. Everybody has been able to plan on it and prepare for it. And there's been a lack of participation by her on some matters here recently, except through her counsel, who has been -- who has done a diligent job in representing her. So, based on those reasons, the Motion for Continuance will be denied.

         "The granting or denial of a motion for a continuance lies in the sound discretion of the court." Blake v. Plus Mark, Inc., 952 S.W.2d 413, 415 (Tenn. 1997) (citing Moorehead v. State, 409 S.W.2d 357, 358 (Tenn. 1966)). The court's ruling on such a motion will not be disturbed on appeal "unless the record clearly shows abuse of discretion and prejudice to the party seeking a continuance." Blake, 952 S.W.2d at 415 (citing State v. Strouth, 620 S.W.2d 467, 472 (Tenn. 1981), cert. denied, 455 U.S. 983, (1982)). In Tidwell v. Burkes, this Court set forth the standard to be applied in ruling on a motion to continue:

When considering a motion for continuance, the following factors are relevant to the trial court's decision: "'(1) the length of time the proceeding has been pending, (2) the reason for the continuance, (3) the diligence of the party seeking the continuance, and (4) the prejudice to the requesting party if the continuance is not granted.'"

No. M2015-01270-COA-R3-CV, 2016 WL 3771553, at *5 (Tenn. Ct. App. July 8, 2016) (internal citations omitted).

         Applying these factors, we observe that the trial date had been set for nearly three months, that Mother failed to document the illnesses identified in her motion or by her counsel and any effect those illnesses may have had on her ability to appear in court, and that she failed to obtain a medical excuse from her doctor which was in compliance with local rule 4.02. She does not assert that any prejudice resulted from the denial of the motion and, from our review of the record, we discern none. Reviewing the trial court's application of the Tidwell standard, we conclude that the court did not abuse its discretion in denying the motion.

         B. Grounds for Termination

         1. Persistence of Conditions

         Parental rights may be terminated on the basis of "persistence of conditions" as defined by Tennessee Code Annotated section 36-1-113(g)(3) when:

The child has been removed from the home of the parent or guardian by order of a court for a period of six (6) months and:
(A) The conditions that led to the child's removal or other conditions that in all reasonable probability would cause the child to be subjected to further abuse or neglect and that, therefore, prevent the child's safe return to the care of the parent or parents or the guardian or guardians, still persist;
(B) There is little likelihood that these conditions will be remedied at an early date so that the child can be safely returned to the parent or parents or the guardian or guardians in the near future; and
(C) The continuation of the parent or guardian and child relationship greatly diminishes the child's chances of early integration into a safe, stable and permanent home[.]

         The petition to terminate Mother's rights alleged that Mother failed to follow an order entered in the dependent and neglect proceeding to enroll Eric in school and that in the 29 months Eric was removed from Mother's home, "Mother has never accepted responsibility for her failure to comply with compulsory attendance laws" and that "Mother has an explicit inability to provide for this child's basic needs [. . .and] is not able to care for him safely." In the order terminating Mother's rights, the trial court held:

In regards to the allegation of persistent conditions, the Court finds that the State has proven this by clear and convincing proof due to all of the mother's conduct, which indicates total and substantial likelihood that she would not be able to remedy these conditions; that she was given many months of opportunities to indicate some kind of remorse or change or willingness to undergo change and that she never did do anything of that nature except to mouth a few times that she would get the child back in school, which from the history of it, does not amount to anything because she has not done it and had refused to do so. All of this in regards to persistent conditions is established by what the Court has already summarized in regards to the Department employees' ...

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