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In re M.E.N.J.

Court of Appeals of Tennessee, Knoxville

December 27, 2017

In re M.E.N.J., et al.

          Assigned on Briefs October 2, 2017

         Appeal from the Juvenile Court for Knox County No. 160106 Timothy E. Irwin, Judge.

         This is a termination of parental rights case. The Department of Children's Services filed a petition to terminate the parental rights of M.L.D.N. (mother) with respect to her firstborn child, M.E.N.J. While that petition was pending, mother had a second child. The guardian ad litem for the two children later filed a petition to terminate the parental rights of mother with respect to her second-born child, M.A.L.D.[1] The trial court found clear and convincing evidence supporting the termination of mother's rights with respect to both children based on three grounds. The court found (1) substantial noncompliance with a permanency plan; (2) persistence of conditions that led to removal of the children; and (3) failure to manifest an ability and willingness to personally assume custody or financial responsibility of the children. The trial court also found clear and convincing evidence that termination is in the best interest of the children. Mother appeals. We affirm.

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

          Ben H. Houston, II, Knoxville, Tennessee, for the appellant, M.L.D.N.

          Herbert H. Slatery, III, Attorney General and Reporter, and Michael C. Polovich, Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Children's Services.

          Charles D. Susano, Jr., J., delivered the opinion of the court, in which W. Neal McBrayer and Arnold B. Goldin, JJ., joined.

          OPINION

          CHARLES D. SUSANO, JR., JUDGE.

         I.

         M.E.N.J. was taken into custody on the motion of DCS. The trial court found that M.E.N.J.'s safety could not be ensured while mother was living with a female friend of hers. The children's case worker testified that mother's friend had an extensive history with DCS. The friend's parental rights with respect to two children had previously been terminated. Mother was warned by DCS that M.E.N.J. would likely be taken from her if she could not make other housing arrangements. Despite this warning, mother failed to make other arrangements.

         The permanency plan with respect to M.E.N.J. was developed with mother's participation. There were numerous requirements. The plan required that mother: (1) obtain and maintain safe, clean, stable housing free from environmental hazards, domestic violence, drug abuse, illegal activity, or other risks to the child; (2) complete a mental health assessment and follow all resulting recommendations (based in part on mother's bipolar disorder for which she was not taking medication due to being pregnant); (3) finish domestic violence classes for victims; (4) submit to random drug screens and, upon failing a drug screen, complete an alcohol and drug assessment; (5) openly and honestly disclose her history of substance use, and follow any resulting recommendations until successfully finishing same; (6) refrain from associating with drug users or dealers; (7) pass random drug screens to demonstrate sobriety (based in part on mother's admission of previous cocaine use); (8) resolve her then-pending criminal charges for shoplifting and avoid further charges; (9) participate in therapeutic visitation to develop parenting skills and an understanding of the impact of domestic violence on children; (10) visit regularly; (11) obtain a stable source of legal income by completing several job applications per week and obtaining employment for at least four months; (12) obtain and maintain a reliable source of transportation, including public or third-party transportation; (13) pay child support; (14) cooperate with court orders, DCS, and other officials; and (15) maintain contact with the child's case manager. Although this plan has been periodically updated, most of the goals had stayed the same.

         M.A.L.D. was born two months after M.E.N.J. was taken into DCS custody. On the motion of the children's guardian ad litem, M.A.L.D. was taken into DCS custody when mother was discharged from the hospital. The juvenile court found that mother had not remedied the issues that led to M.E.N.J.'s removal. The court ruled that this necessitated M.A.L.D.'s removal, as well.

         Mother continued to reside with her female friend after her children were removed. She brought her then-boyfriend, M.A.L.D.'s father, into her friend's house. However, her boyfriend's drinking ultimately led to mother and her boyfriend being asked to leave. Mother and her then-boyfriend went on to stay with various friends in the Western Heights Housing Project or at the Knoxville Area Rescue Ministry. They also briefly stayed with the girlfriend of her boyfriend's brother. Mother's relationship with that boyfriend later ended. Mother then stayed briefly with another friend in Western Heights.

         Mother then met her new and seemingly-current boyfriend, T.R., who has an extensive criminal record involving drugs and violence. Mother also began sleeping on a pile of cardboard boxes behind the Tennessee Theatre. Mother stated in her answer that she is not in a relationship with anyone, and that T.R. only watches her sleep in the alley to protect her. However, the children's case worker testified that in mother's Facebook postings, she described T.R. as her fiancé and the love of her life.

         In order to bring mother a bus pass, the children's caseworker met with her in the alley where she was living. Mother told the case worker that her own mother had sent her $250 for a hotel room for a week. Mother then returned to the alley, where she was arrested for failing to pay child support. She told the case worker that, since her release, "we" have been living with another couple in a tent. The case worker assumed that the "we" was referring to herself and T.R.

         The children's case worker has made repeated attempts to find mother suitable housing. She suggested to mother that she go to Knoxville Area Rescue Ministries, where she could receive services and enter their transitional living program. Mother told the case worker she did not want to go to KARM for fear of getting scabies, but she allegedly told the children's foster mother that she would not go to KARM because T.R. was not allowed to stay with her there. The children's case worker offered to assist mother in filling out housing applications, and she told mother that she would drive her to submit them. Mother, however, declined the case worker's help, stating that she could take care of any applications herself and that she was only interested in moving into Western Heights. Despite being homeless at the time, mother would not consider any other location.

         Mother completed a mental health assessment and began attending the recommended individual therapy and case management. However, she stopped attending a few months later and also stopped working with her case manager a month later. She claimed that she had been taken off her psychotropic medication due to her pregnancy. However, when confronted with her medical records, mother admitted that she had not returned for her psychiatric appointments and had voluntarily stopped taking her medication. She completed another medical evaluation, but again failed to return. A few months later, mother told the children's case worker that she could not access therapy or medication because she no longer had insurance. However, when the case worker made mother an appointment for an updated mental health assessment at no cost to her, she had great difficulty locating mother, who missed the scheduled appointments. Mother eventually completed the evaluation a few months later, which recommended individual therapy and medication. Mother has attended a few therapy appointments since then, but has not begun taking any medication.

         Mother has not failed any drug screenings since her children were taken into DCS custody. However, most of her significant others have had serious alcohol or drug abuse issues. Mother acknowledged that her previous boyfriend's substance abuse issues were a barrier to the return of her children. Despite this knowledge, mother chose to subsequently become involved with T.R., an individual with substance abuse and violence issues.

         DCS filed a petition to terminate mother's parental rights as to both children, asserting that it had been six months since the children were taken from mother's custody, but that (1) mother's conditions that led to the children's removal still persist; (2) mother has failed to substantially comply with the permanency plan; and (3) mother failed to manifest an ability and willingness to personally assume custody or financial responsibility of the children. DCS also asserted that termination of mother's parental rights is in the children's best interest. It was the desire of DCS to place the children for adoption. The children's case worker testified that the children are "doing very well" in the prospective adoptive home and that they have remained in the same home since they entered foster care.

         Mother responded with a handwritten answer, asserting that she was attempting to get an apartment and is working to pay child support. She argues that she is not in a relationship and has done everything requested of her by the case worker. She also asserted that she asked her case worker for help with "fixing" her identification, and that she began working after it was fixed. She argued that T.R. protects her in the alley and that he has helped her "more than any of [her] friends have." Mother states in her answer that

[m]y children are better off with me than anyone else. The foster mom is good but she is not their birth mom! No one is going to love my kids like I do. My children belong with me[, ] no one else. I am doing my hardest to get them back!

         The children's case worker testified that mother had visited the children and that the visits overall went well.

         The trial court found clear and convincing evidence supporting the termination of mother's rights based on DCS's three asserted grounds. The trial court also found, by clear and convincing evidence, that termination of mother's rights was in the best interest of the children. Mother appeals.

         II.

         Mother raises the following issues on appeal as taken verbatim from her brief:

Did the trial court err by terminating the Respondent's parental rights on the basis of persistent conditions pursuant to Tenn. Code Ann. § 36-1-113(g)(3) where the Department of Children's Services failed to introduce sufficient evidence into the record to prove persistent conditions as a ground for termination by clear and convincing evidence?
Did the trial court err by terminating the Respondent's parental rights on the basis of substantial noncompliance with the terms of the permanency plan pursuant to Tenn. Code Ann. ยง 36-1-113(g)(2) where the Department of Children's Services failed to introduce sufficient evidence into the record to prove ...

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