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In re Ken'Bria B.

Court of Appeals of Tennessee, Jackson

January 4, 2018

IN RE KEN'BRIA B.

          Assigned on Briefs December 4, 2017

         Appeal from the Juvenile Court for Shelby County No. CC1917 Harold W. Horne, Special Judge

         This appeal concerns termination of a father's parental rights. The Tennessee Department of Children's Services ("DCS") filed a petition in the Juvenile Court for Shelby County ("the Juvenile Court") seeking to terminate the parental rights of Kenneth F. ("Father") to his minor child Ken'bria B. ("the Child"). After a trial, the Juvenile Court entered an order terminating Father's parental rights to the Child. Father timely appealed to this Court. On appeal, Father argues, among other things, that he has an upcoming opportunity for parole and, therefore, the ground of incarceration for ten years or longer when the child is less than eight years of age should not apply. We affirm the judgment of the Juvenile Court.

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

          Alexandra Tallent, Memphis, Tennessee, for the appellant, Kenneth F.

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

          D. Michael Swiney, C.J., delivered the opinion of the court, in which Andy D. Bennett and Kenny W. Armstrong, JJ., joined.

          OPINION

          D. MICHAEL SWINEY, CHIEF JUDGE.

         Background

         The Child was born in June 2014. Although Father was not listed on the Child's birth certificate, the Child's mother identified him as the father of the Child.[1] Father never filed a petition to establish paternity. In November 2014, the Child was placed in DCS's custody. In March 2015, the Child was adjudicated dependent and neglected.

         In December 2013, Father was incarcerated. In February 2016, Father was sentenced to fifteen years in prison for, among other offenses, aggravated robbery. In February 2016, Father signed the Criteria and Procedures for Termination of Parental Rights. Father participated in a permanency plan, as well. On December 20, 2016, Father had a supervised visit with the Child. Father's visitation rights were suspended thereafter when drugs were found in his shared prison cell. Father denied owning the drugs. Father suggested that either his wife, Keitra F., or the Child's grandmother assume custody of the Child. Neither option ever materialized. Father's support for the Child has consisted of Christmas presents, cards, and assisting with a birthday party. The Child currently lives in foster care in the home of Kizzy J. ("Foster Mother"). The Child lives there with her two siblings, who already have been adopted by Foster Mother. In December 2016, DCS filed a petition in the Juvenile Court seeking to terminate Father's parental rights to the Child. This case was tried in June 2017.

         Beverly Williams, DCS caseworker on the Child's case between November 2015 and September 2016, testified as follows:

Q. Now, Ms. Williams, did you ever try to set up visits between the child and [Father] at 201?[2]
A. Yes, I did.
Q. Okay. And what happened with that?
A. At the time that we tried to set that, he was -- I think he told me he was put in a hole where he couldn't have visits because of infractions.
Q. Okay. Did he tell you why or specifically what the infractions were?
A. No, he did not.
Q. Okay. Did you ever receive any notification that he had gotten out of the hole and was able to have visits again?
A. No, I did not.
Q. And did you provide your contact information to [Father]?
A. Yes, I did.
Q. Okay. And did your contact information change at all during the period of time that you had the case between November 2015 and September 2016?
A. No.

         Father testified to his interactions with DCS and his participation in the case as follows, in part:

Q. And you said you were first incarcerated in 2014. Would that be correct?
A. It might have been '13.
Q. Did the Department ever visit you at 201?
A. Yes, ma'am.
Q. Do you remember who visited you?
A. Yes, ma'am.
Q. Who was the person?
A. Ms. Flowers and Ms. Betty is her name.
Q. Do you remember the first time they visited you?
A. Yes, ma'am.
Q. When was that?
A. That was when I got like a year after I had already been incarcerated, I would say around about in January, around about 2015.
Q. Did you ever receive any mail at 201 from DCS about court dates or court hearings?
A. No, ma'am.
Q. Did you ever receive any kind of notices saying you had a right to counsel during these proceedings?
A. No, ma'am.
Q. Were you ever served any orders from the Court giving you notice or continuances telling you court dates?
A. I was served one notice saying that I had to be transported to Juvenile Court for a hearing, but I was never transported down there.
Q. Did you have a counselor at 201?
A. Yes, ma'am.
Q. Okay. Were they able to assist you with any ...

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