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 ...