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In re Nashay B.

Court of Appeals of Tennessee, Nashville

January 10, 2018

In re NASHAY B. et al.

          Assigned on Briefs August 1, 2017

         Appeal from the Juvenile Court for Montgomery County No. MC-JV-TP-CV-16-JV-536, MC-JV-TP-CV-16-JV-537 Timothy Barnes, Judge

         A mother appeals the termination of her parental rights to her two children. The juvenile court found three statutory grounds for termination of parental rights: abandonment by failure to support, abandonment by failure to provide a suitable home, and persistence of conditions. The juvenile court also found that termination of the mother's parental rights was in the children's best interest. We conclude that the evidence was less than clear and convincing that the mother abandoned the children by failure to support. But the record contains clear and convincing evidence to support the other grounds for termination and that termination is in the children's best interest. Thus, we affirm the termination of the mother's parental rights.

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

          Gregory D. Smith, Clarksville, Tennessee, for the appellant, Natasha C.

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

          W. Neal McBrayer, J., delivered the opinion of the court, in which John W. McClarty and Arnold B. Goldin, JJ., joined.

          OPINION

          W. NEAL McBRAYER, JUDGE

         I.

         A. Factual &Procedural History

         Natasha C. ("Mother") is the mother of Nashay B., born in December 2008, and Damon B., born in July 2010. On April 24, 2013, acting on a report of lack of supervision, the Tennessee Department of Children's Services ("DCS") sent a case worker to Mother's home to investigate.

         The investigation revealed that Mother and the children had moved to Tennessee from Missouri. Mother lived in a two bedroom apartment. The apartment was also the home of Mother's boyfriend and his brother. Mother, her boyfriend, and the two children all slept in one of the bedrooms. Mother, who was unemployed at the time, stated that she was unable to care for the children because of her rheumatoid arthritis and bipolar disorder. Mother also complained that, since relocating to Tennessee, she had been unable to obtain medication for her medical conditions.

         Mother told the case worker that she felt like it was in her children's best interest that they be placed in state custody. DCS developed a plan to put services in the home and contacted family members, but Mother's family was unwilling to help.

         The next day, DCS received a second referral concerning Mother. While seeking treatment at a medical clinic, Mother expressed her wish to commit suicide. As a result, she was transferred to a mental facility. Before she left, Mother informed the clinic that she had placed the children in the care of a neighbor whom she barely knew.

         On April 29, 2013, DCS filed a petition seeking temporary protective custody of the children. The Juvenile Court of Montgomery County, Tennessee, entered a protective custody order granting temporary legal custody of the children to DCS "as of April 25, 2013." At the subsequent adjudicatory hearing, Mother waived her right to a hearing and stipulated that the children were dependent and neglected. And the juvenile court ordered that the children remain in the custody of DCS.

         Mother and DCS developed three permanency plans between May 2013 and October 2015. Among other things, the first plan required Mother to make voluntary child support payments, obtain appropriate housing, and seek treatment for her medical and mental conditions. The second permanency plan added the requirement that Mother visit with the children. The third permanency plan clarified that Mother's support obligation was $25 per month.

          On May 5, 2016, DCS filed a petition to terminate Mother's parental rights.[1] The petition alleged abandonment by failure to visit, abandonment by failure to support, abandonment by failure to provide a suitable home, and persistent conditions that prevented the children from being returned to Mother's custody.

         On November 17, 2016, the juvenile court held a hearing on DCS's petition. A DCS caseworker and Mother were the only witnesses. At the time, Mother was staying at a women's shelter in Nashville, where she had been for the previous four to five months. Prior to that, she stayed at the YWCA, which had a transitional housing program. According to Mother, she could not participate in that program because she was not employed.

         Mother had worked on several occasions since the removal of her children. But testimony revealed that her longest period of employment was only five months. Mother claimed her inability to maintain employment was due to her physical health. She last worked approximately two months prior to the hearing. Ultimately, she left the job due to her arthritis. Mother had applied for social security disability benefits, but despite her health issues, she was denied.

         Mother admitted to being diagnosed with bipolar disorder. And she claimed to have received both medical and mental health treatment since removal of her children, a fact DCS could not verify. Mother conceded that she had not provided DCS with her records or executed a release to allow DCS access to her protected health information. The caseworker testified that Mother had not consistently followed the recommendations of her doctors.

         Mother explained that she was not in active treatment as of the date of trial for her mental health issues because she had lost her job and insurance. According to her, she had three months' worth of medication that she could take until she could be seen again. Mother testified that her psychiatrist, whose name she could not initially recall, would provide her with free samples when she could not afford her prescription medication. Mother acknowledged going periods as long as two months without taking her medication.

         B. The Juvenile Court's Ruling

         On March 7, 2017, the trial court entered an order terminating Mother's parental rights to the children. The court found that DCS failed to prove the ground of abandonment by willful failure to visit. But the court found termination was appropriate based on the grounds of abandonment by failure to support, abandonment for failure to provide a suitable home, and persistence of conditions. The court also found that termination was in the children's best interest.

         II.

         A parent has a fundamental right, based in both the federal and State constitutions, to the care and custody of his or her own child. Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174-75 (Tenn. 1996); In re Adoption of Female Child, 896 S.W.2d 546, 547-48 (Tenn. 1995). But parental rights are not absolute. In re Angela E., 303 S.W.3d at 250. Our Legislature has identified those situations in which the State's interest in the welfare of a child justifies interference with a parent's constitutional rights by setting forth the grounds upon which termination proceedings may be brought. See Tenn. Code Ann. § 36-1-113(g) (2017).

         Tennessee Code Annotated § 36-1-113 sets forth both the grounds and procedures for terminating parental rights. In re Kaliyah S., 455 S.W.3d 533, 546 (Tenn. 2015). First, parties seeking termination of parental rights must prove the existence of at least one of the statutory grounds for termination listed in Tennessee Code Annotated § 36-1-113(g). Tenn. Code Ann. § 36-1-113(c)(1). Second, ...


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