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In re Alyssa W.

Court of Appeals of Tennessee, Knoxville

December 14, 2017

IN RE ALYSSA W., ET AL.[1]

          Assigned on Briefs July 3, 2017

         Appeal from the Circuit Court for Bradley County No. V-16-138 J. Michael Sharp, Judge

         The Department of Children's Services initiated a proceeding to have four children declared dependent and neglected; the children were so determined, and in a separate proceeding, the Department sought to terminate the rights of the parents of the children. The rights of the father of three of the children were terminated on the grounds of substantial noncompliance with the permanency plans, persistence of conditions, and severe child abuse; the court also determined that termination was in the children's best interest. After a thorough review of the record, we reverse the ground of persistence of conditions and affirm the remaining grounds and the holding that termination of Father's rights is in the best interest of the children.

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

          Berry Foster, Chattanooga, Tennessee, for the appellant, Edwin B.

          Herbert H. Slattery, III, Attorney General and Reporter; Ellison M. Berryhill, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services.

          Richard H. Dinkins, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and J. Steven Stafford, P.J., W.S., joined.

          OPINION

          RICHARD H. DINKINS, JUDGE

         I. Background And Procedural History

         This is an appeal from the termination of Edwin B.'s ("Father") rights to three children: Dylan B., born in September 2009, Sophia B., born in March 2014, and Edwin B., Jr., born in June 2015. These children all have the same mother, April W. ("Mother"). A fourth child, Alyssa W., was born to Mother and John W. in July 2008; Alyssa lived with Father prior to the events giving rise to this appeal.

         The Department of Children's Services ("DCS" or "the Department") initially became involved with the family in April of 2013 when the children's maternal grandmother filed a petition for emergency custody of them in Knox County Juvenile Court. The record is unclear about the circumstances that led her to file the petition, but it appears that Alyssa and Dylan were removed from Father's home and placed in DCS custody at that time. On July 25, 2013, Father filed a petition for custody; that petition, along with others filed by various interested parties, was heard on November 12, 2013. On February 21, 2014, a magistrate entered an order, nunc pro tunc to November 12, 2013, holding that Father would retain legal and physical custody of both children; that the maternal grandmother would have the authority to consent to their medical and educational matters and continuing responsibility to provide for their care and supervision; and that Mother was allowed visitation supervised by the maternal grandmother on various days and times, not to exceed twelve hours per week, was prohibited from spending the night at any place where the children were staying, and was to complete an intensive outpatient program in which she was enrolled.

         DCS became involved again on January 28, 2015, after the Department received a referral of a drug exposed child. Following interviews with Alyssa and Dylan where they described seeing Mother use "a rig" or give herself "a shot" in the arm, the Department initiated a dependent and neglect proceeding in Bradley County, where Father and the children had moved.[2] The children were subsequently removed from the home, and permanency plans were developed on March 9, 2015 and June 3, 2015, [3] for Alyssa, Dylan, and Sophia. In June 2015, shortly after his birth, the Department received a referral that Edwin Jr., had tested positive for amphetamines and methamphetamine, and he was placed in DCS custody; another permanency plan was created in January 2016.

         An adjudicatory hearing was held on four different days, and the children were adjudicated dependent and neglected and held to be the victims of severe child abuse on March 16, 2016. Both Mother and Father timely appealed that decision to the circuit court.

         On July 21, 2016, DCS filed a petition to terminate the rights of Mother and Father to Dylan, Sophia, and Edwin, Jr., as well as the rights of Mother and John W. to Alyssa. With respect to Father, the petition alleged the following grounds for termination: abandonment by failure to provide a suitable home (Tennessee Code Annotated sections 36-1-113(g)(1) and 36-1-102(1)(A)(ii)); abandonment by failure to support (Tennessee Code Annotated sections 36-1-113(g)(1) and 36-1-102(1)(A)(i)); substantial noncompliance with the permanency plan (Tennessee Code Annotated section 36-1-113(g)(2)); persistence of conditions (Tennessee Code Annotated section 36-1-113(g)(3)); and severe child abuse (Tennessee Code Annotated section 36-1-113(g)(4)). The petition also alleged that termination was in the best interest of the children. An amended petition was filed on July 25, 2016.[4]

         The de novo adjudicatory hearing on the dependent and neglect petition was consolidated for hearing with the termination petition by agreement of the parties; the hearing took place on August 29, 2016. The following witnesses were called: Child Protective Services Investigator Brittany Olenick-Bordes, Father's sister-in-law Kimberly B., DCS family service worker Cassandra Leonor, case manager and visitation supervisor Erica Holmes of the Chambliss Center for Children, Omega Laboratories Positive Certifying Scientist and Confirmation Supervisor Patrick Minno, Mother, Mother's boyfriend Mark M., Father, and the children's foster mother. Following the hearing, the court entered an order adjudicating the children to be dependent and neglected pursuant to Tennessee Code Annotated section 37-1-102(b)(12)(G) and finding them to be victims of severe abuse pursuant to section 37-1-102(b)(21)(A)(ii). With respect to the termination petition, the court made numerous factual findings and concluded that the evidence did not support termination of Father's rights on the grounds of abandonment by failure to provide a suitable home or by failing to support the children, but that it did clearly and convincingly support the grounds of substantial noncompliance with the permanency plans and severe child abuse as to Dylan, Sophia, and Edwin Jr., and persistence of conditions as to Dylan. The court also determined that termination of Father's rights was in the children's best interest.[5]

         Father appeals the termination of his rights, contending that there is not clear and convincing evidence in support of any of the grounds or that termination is in the best interest of the children.

         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 under 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 proved 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. Discussion

         A. Substantial Non-Compliance with the Permanency Plan

         In the dependent and neglect proceeding two permanency plans were developed, both of which were ratified by the court on February 4, 2016. The June 2015 plan applied to Alyssa, Dylan, and Sofia and had as goals "return to parent" and "adoption." The plan listed three desired outcomes, each of which placed specific responsibilities on Father: (1) that "[t]he children will reside in a drug free living environment, " which required Father to abide by all court orders, including supervision of the children as outlined by the court or the department and to "not be around those that use or abuse illegal substances"; (2) that a stable home environment would be provided for the children, which required Father to provide proof of legal income, obtain and maintain residential stability for a minimum of six months, provide a copy of a rental or lease agreement in his own name, provide documentation of a current driver's license, proof of insurance, and vehicle registration or establish a transportation plan, maintain contact with the family service worker, and provide proof of utilities in his own name; and (3) that "Alyssa will continue her educational program, " which placed on Father the responsibility to ensure that she attend school on a daily basis, turn in all assignments in a timely manner, follow all rules at school and on school property, and that he would participate in any educational meetings held for her.

         The January 2016 plan, which Father signed only as participating in the meeting where the plan was developed, contained the same goals for the oldest three children; with respect to Edwin Jr, who had been born in the interim, the plan only contained the goal of "return to parent." Father's responsibilities under this plan were substantially the same as the previous plan, adding Dylan to the desired outcome of continuing educational programs which had previously only referenced Alyssa.

         A court is authorized to terminate parental rights when there is "substantial noncompliance by the parent or guardian with the statement of responsibilities in a permanency plan pursuant to the provisions of title 37, chapter 2, part 4." Tenn. Code Ann. § 36-1-113(g)(2). In order to justify the termination of parental rights, the parent's noncompliance must be "substantial." In re S.H., No. M2007-01718-COA-R3-PT, 2008 WL 1901118, at *7 (Tenn. Ct. App. Apr. 30, 2008). Technical noncompliance is not substantial and is not sufficient to justify the termination of parental rights. Id. Expounding upon this requirement, the court in In re M.J.B. stated,

Terminating parental rights based on Tenn. Code Ann. §36-1-113(g)(2) requires more proof than that a parent has not complied with every jot and tittle of the permanency plan. To succeed, the Department must demonstrate first that the requirements of the permanency plan are reasonable and related to remedying the conditions that caused the child to be removed from the parent's custody in the first place, In re Valentine, 79 S.W.3d at 547; In re L.J.C., 124 S.W.3d 609, 621 (Tenn. Ct. App. 2003), and second that the parent's noncompliance and the importance of the particular requirement that has not been met. In re Valentine, 79 S.W.3d at 548-49; In re Z.J.S., [No. M2002-02235-COA-R3-JV, ] 2003 WL 21266854, at *12 [(Tenn. Ct. App. June 3, 2003)]. Trivial, minor, or technical deviations from the permanency plan's requirements will not be deemed to amount to substantial noncompliance. In re Valentine, 79 S.W.3d at 548; Department of Children's Servs. v. C.L., No. M2001-02729-COA-R3-JV, 2003 WL 22037399, at *18 (Tenn. Ct. App. Aug. 29, 2003) (No Tenn. R. App. P. 11 application filed).

140 S.W.3d at 656-57. Whether there has been substantial noncompliance with the requirements of the permanency plan is a question of law and is reviewed de novo with no presumption of correctness. In re R.L.F., 278 S.W.3d 305, 312 (Tenn. Ct. App. 2008), abrogated on other grounds by In re Kaliyah S., 455 S.W.3d 533 (Tenn. 2015) (citing In re Valentine, 79 S.W.3d at 546).

As to this ground, the trial court held:
. . . The Juvenile Court ratified the two permanency plans on February 4, 2016 as in the children's best interests and found that the requirements for the Respondents were reasonably related to the reasons for foster care.
***
The permanency plans require [Father] to accomplish the following tasks/responsibilities: not be around those who use or abuse illegal substances; submit to random drug screens by the department; abide by all court orders; participate in any educational meetings held for the children; provide documentation of a current driver's license, proof of insurance, vehicle registration or a transportation plan; provide the department with proof of legal income; obtain and maintain residential stability for a minimum of six months; provide the department with a copy of a rental/lease agreement in her [sic] own name; attend Spanish/English language classes on Saturdays; maintain contact with the family service worker and notify FSW of any change of circumstance within 24 hours; seek and gain employment and provide proof of employment; provide the department with proof of utilities in his own name.
***
The Court finds by clear and convincing evidence that [Father] has not substantially complied with the requirements of the permanency plans. The Court finds in particular, that [Father] does not have a valid driver's license, and continues to drive in violation of the law without one. [Father] has not refrained from associating with [Mother], although she uses illegal drugs. [Father] testified that until recently [Mother] had a key to his home. Further, [Father] has attended visitations with [Mother], riding to and from visits together. In June of 2016, [Father] paid a cash bond for her. The Court finds that the utilities at [Father's] home are in [Mother's] name.
The Court also notes that in addition to having a fairly thin transportation plan (per [Father's] testimony, he would call a taxi), [Father] did not indicate who would provide childcare for the four children while he worked if they returned to his custody. The court finds [Father] has no real concern for [Mother's] illegal drug use, even to the point of continuing to leave his children alone with her in direct violation of valid court orders. The court does not believe this will change, given [Father]'s testimony and demeanor.

         Father argues that the trial court did not make the necessary finding that the requirements of the permanency plan were reasonable and related to remedying the conditions which necessitate foster care placement. He also argues that he has complied with the permanency plan, except that he has not obtained a driver's license or completed the Spanish/English classes, and as to those requirements, DCS "has provided next to nothing with respect to services and/or offers to assist Father."

         Where a trial court has not made a finding regarding the reasonableness of the requirements of a permanency plan, we review the issue de novo. In re Valentine, 79 S.W.3d at 547. The requirements that Father not be around people who were using illegal substances and that he comply with existing court orders addressed the plan's objectives to minimize the impact of Mother's drug use on the children and that her visitation with them be supervised. The requirements also addressed measures Father needed to take to ensure not only that the Alyssa and Dylan maintained consistency at school but also that safe, legal, and reliable transportation was available to them. Upon our review, we conclude that the requirements were reasonably related to remedying the conditions that caused the children to be removed from Father's custody and addressed the conditions which led to the dependent and neglect proceedings, particularly Mother's drug use and the overall lack of safety and stability afforded the children while living in the home. We proceed to address whether there is clear and convincing evidence that Father was not in substantial compliance with the plans.

          Father's sister-in-law testified that Father, Mother, Dylan, and Alyssa resided with her for more than a month when the family moved to Bradley County and that Mother stayed at the home every night during this time. Ms. Leonor testified that Mother was present during a home study at Father's home that Ms. Leonor conducted, and it was clear that Mother was living in the home; that Mother's name appeared on Father's utility bills; that Father failed to obtain a valid driver's license, and that, despite the suggestion that he use a taxi as part of his transportation plan, Father never used this service to attend a visit. Ms. Leonor also testified that Father completed several of the requirements under the plans, i.e., he provided proof of income, proof of rental or lease in his own name, and did not use illegal substances; however, both Ms. Leonor and Father testified that Father failed to complete a number of critical tasks required under the plans.

         The proof clearly showed that Father maintained a relationship with Mother despite the requirements of the permanency plans not to associate with those who use or abuse illegal substances; Mother testified that she has used drugs, specifically methamphetamine.[6] In addition, Father testified that he and Mother spoke on the phone regularly; that Mother had a key to his home as recently as three months prior to trial; that the two had been involved in an altercation in which Father chased Mother with a machete a few months prior to trial; and that he paid a cash bond for Mother in June of 2016. The Knox County order, compliance with which was a condition required in the permanency plan, required Father to allow Mother only supervised visitation and not to allow her overnight stays with the children. These requirements were of paramount concern to DCS and the trial court; not only did Father fail to separate himself from Mother, but allowed her to be around the children overnight and unsupervised violated the order and the permanency plans. The evidence clearly and convincingly shows Father's substantial noncompliance with the plans.

         B. Severe Child Abuse

         Tennessee Code Annotated section 36-1-113(g)(4) provides that parental rights can be terminated when "the parent or guardian has been found to have committed severe child abuse as defined in § 37-1-102, . . . by the court hearing the petition to terminate parental rights . . . against the child who is the subject of the petition or against any sibling or half-sibling of such child, or any other child residing temporarily or permanently in the home of such parent or guardian." A parent can be responsible for severe child abuse when the parent participates in the "knowing exposure of a child to or the knowing failure to protect a child from abuse or neglect that is likely to cause serious bodily injury or death. . . . " Tenn. Code Ann. § 37-1-102(b)(22)(A)(i). "Knowing" is not explicitly defined in the statutes pertaining to child abuse or dependency and neglect; however, the "knowing" requirement is "not limited to parents who are present when severe abuse actually occurs." In re R.C.P., No. M2003-01143-COA-R3-PT, 2004 WL 1567122, at *7 (Tenn. Ct. App. July 13, 2004). Parents have an underlying "duty to provide, and children have a corresponding right to be provided with, a safe environment, free from abuse and neglect." In re H.L.F., 297 S.W.3d 223, 235 (Tenn. Ct. App. 2009) (quoting In re R.C.P., 2004 WL 1567122, at *6).

         Relative to Father, the trial court ruled as follows regarding the ground of severe child abuse:

The court finds, by clear and convincing evidence, that the children Alyssa W[.], Dylan B[.], Sophia B[.], and Edwin B[.] Jr. are victims of severe abuse pursuant to T.C.A. § 37-1-102(b)(21)(A)(ii).[7] The Court makes these findings as to the Mother, exposing these children to methamphetamine and other drugs, causing the two youngest children, Sophia B[.] and Edwin B[.] Jr., to ingest that dangerous controlled substance through direct contact and/or in utero exposure and exposing the children Alyssa and Dylan to the threat of exposure; and as to the Father knowingly failing to protect these children from said exposure and severe abuse.
***
The Court finds that the State presented clear and convincing evidence, in conformity with In re Mason E., et al., E2015-01256-COA-R3-JV, filed May 16, 2016, that the child Sophia was positive for methamphetamine pursuant to a hair follicle test conducted by Omega Laboratories.
The Court notes that [Father], through counsel, repeatedly raised the point that [Father] was not present when the children stated that their mother, April W[.], was using drugs in front of them. However, "knowing" does not require that the parent is physically present when abuse or neglect occurs. The term "knowing" is not defined in T.C.A. § 37-1-102(b). However, the Court of Appeals referred in In re S.J., 387 S.W.3d 576 (Tenn.App., 2012) to the case of In re Caleb J.B.W., where the Court addressed the meaning of "knowing, " finding that it "consider[s] a person's conduct to be "knowing, " and a person to act or fail to act "knowingly, " when he or she has actual knowledge of the relevant facts and circumstances or when he or she is either in deliberate ignorance of or in reckless disregard of the information that has been presented to him or her.
(In re Caleb J.B.W., No. E2009-01996-COA-R3-PT, 2010 WL 2787848, at *5, 2010 Tenn.App. LEXIS 447 (Tenn. Ct. App. July 14, 2010) (citing In re R.C.P., 2004 ...

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