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In re Aaralyn O.

Court of Appeals of Tennessee, Jackson

January 18, 2018

IN RE AARALYN O., ET AL.

          Assigned on Briefs December 4, 2017

         Appeal from the Juvenile Court for Tipton County No. 16-JV-243 William A. Peeler, Judge

         The trial court terminated Father's parental rights on the grounds of (1) abandonment by failure to establish a suitable home; (2) abandonment by demonstrating a wanton disregard for the children's welfare; (3) substantial non-compliance with the permanency plans; and (4) persistent conditions. We affirm the trial court's judgment in all respects.

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

          Frank Deslauriers, Covington, Tennessee, for the appellant, Anthony O.

          Herbert H. Slatery, III, Attorney General and Reporter; Jordan K. Crews, Assistant Attorney General, for the appellee, State of Tennessee, Department of Children's Services.

          Michael H. Willis, Covington, Tennessee, Guardian ad Litem.

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

          OPINION

          J. STEVEN STAFFORD, JUDGE.

         FACTS

         Anthony O. ("Father") is the natural and legal parent of three minor children.[1] At the time of the termination hearing, the children were four, three, and one.[2] The children's mother, Chelsea S. ("Mother"), surrendered her parental rights to the children before the trial court on November 11, 2016. This case arises solely from Father's appeal of the termination of his parental rights.

         On August 26, 2015, the Tennessee Department of Children's Services ("DCS") received a report regarding the minor children. Specifically, law enforcement received an emergency call from Mother and Father's address; the call was dropped prior to completion. Officers then responded to the emergency call at the family's home, finding both Mother and Father under the influence with all three children present. When the DCS investigator arrived on the scene, Father submitted to a urine drug screen, testing positive for methamphetamine, Ecstasy, and amphetamine. Father also admitted to using drugs earlier that day. Additionally, officers recovered drug paraphernalia from the home, including a syringe with an open needle. Numerous other hazards were also observed in the home, for example: large holes in both the floor and the wall covered with plywood and clothing and soiled diapers covering the bedroom floor.

         As a result, the minor children were placed in DCS custody on August 27, 2015, and have remained continuously in foster care since that time. The Tipton County Juvenile Court ("juvenile court" or "trial court") entered a written order on January 6, 2016, adjudicating the children dependent and neglected and ordering that the children remain in state custody pending a further order of the court.

         DCS prepared three permanency plans in this case. The first permanency plan was developed on September 21, 2015, with the goal of "Return to Parent" or "Exit Custody with Relative[.]" This permanency plan required Father to: (1) contact DCS and schedule visits with the minor children; (2) transport himself and be on time to these meetings, and additionally notify the case manager twenty-four hours prior to the scheduled visit if there was a need to cancel; (3) interact with the child in an age appropriate manner; (4) demonstrate an ability to maintain financial security, appropriate housing, and sobriety; (5) submit to random drug screens; (6) complete an alcohol and drug ("A&D") and mental health assessment and follow the recommendations of these assessments; (7) take medications as prescribed; (8) refrain from being charged with any new offenses and follow all court orders regarding previous criminal charges; (9) complete parenting classes and demonstrate appropriate parenting skills; and (10) complete anger management classes. Father participated in the creation of the permanency plan. The trial court ratified the plan on December 6, 2015.

         Two subsequent permanency plans were developed on February 25, 2016, and July 25, 2016. The February 25 permanency plan was ratified on April 20, 2016. Father participated in the February 25 permanency plan by phone. However, at the ratification hearing on April 25, the trial court found that Father was non-compliant with the tasks and responsibilities set forth in the plan. The children therefore remained in foster care.

         The July 25 permanency plan was ratified on September 14, 2016. The responsibilities and requirements set forth in this plan did not change from the previous plans. Father did not participate in the development of this plan. However, Bridget Norfork ("Ms. Norfork"), the DCS Family Services Worker, to Father's case, testified that she discussed the plan with Father while he was incarcerated. At the ratification hearing on September 14, the trial court again found Father non-compliant with the tasks and responsibilities set forth in the plan. The trial court, again, ordered that the children remain in foster care.

         On November 17, 2016, DCS filed a petition to terminate Father's parental rights. The petition alleged as grounds: (1) abandonment by failure to establish a suitable home; (2) abandonment by an incarcerated parent for failure to visit and support and by demonstrating a wanton disregard for children's welfare; (3) substantial non-compliance with the permanency plans; and (4) persistent conditions. The trial court held a hearing regarding the petition for termination on May 11, 2017. At the start of the hearing, DCS indicated that it would not proceed as to abandonment by willful failure to visit and support. At the hearing, the trial court heard testimony, most notably from Father, Ms. Norfork, and the children's foster mother, Delynn J. ("Foster Mother"). During his testimony, Father acknowledged his lengthy criminal history. Father admitted that in 2009, he was convicted of Grand Theft Auto in Florida, where he served twenty-two months for the crime. Further, Father testified that he was charged with, and pled guilty to, the intentional sale of a controlled substance in 2012. Father also admitted that he had violated probation at least four or five times in total. At the time the children were removed, it appears that Father was on probation.

         Additionally, Father affirmed that his criminal behavior continued even after his children were in the custody of DCS. In September 2015, just one month after the children were placed in state custody, Father admitted that he was charged with vandalism. As a result, Father was found to have violated his probation and in March 2016 was sentenced to five years incarceration at thirty percent. Father also testified that with good time credits, his expected release date is January 2018.[3] However, Father admitted that his history of incarceration had led him to spend significant time away from his children.

         Moreover, Father conceded that (1) he had not had stable housing at any point since the children were placed into DCS custody; (2) he failed to make any changes in his lifestyle until September 2016, which was over one year after the children were in state custody and after he was incarcerated; (3) he has not visited his children since January 2016, two months prior to his current incarceration; and (4) from August 2015 to December 2015, the four months following the children's removal, Father failed to remain in consistent contact with DCS or his attorney.

         When asked about the permanency plans, Father testified that he had not obtained stable housing, but after his release from jail he believed he would be able to provide stable housing by March 2018. Additionally, Father stated that he did submit to random drug screens, however, he did not always test clean. Further, Father admitted that he did not refrain from illegal activities, as he is currently incarcerated due to revocation of his probation stemming from a vandalism charge. While Father also stated that he did complete a mental health assessment, he admitted that he did not follow the recommendations as he did not complete the recommended alcohol and drug treatment due to an incident with a staff member at the treatment facility. Lastly, Father conceded that although he had completed parenting classes, he did not do so until after he was incarcerated-over one year after his children were removed. Father also acknowledged that he was provided on more than one occasion, and understood, the information regarding the criteria and grounds for the termination of his parental rights.

         Ms. Norfork also testified at the May 11 hearing. She stated that the four months immediately following the removal of the children, Father did not have stable housing, never providing DCS with a permanent address, and at times reporting that he was living in his truck. Additionally, Ms. Norfork noted that there were some occasions in which DCS did not know Father's whereabouts. Regardless, Ms. Norfork explained that DCS made reasonable efforts to assist Father in finding a stable home. For example, Ms. Norfork testified that DCS attempted to ascertain Father's whereabouts and provided him with locations for A&D assessments. Ms. Norfork also confirmed that Father was discharged from a rehabilitation center without completing his treatment. Ms. Norfork noted that DCS did not change the requirements in the permanency plans, but extended some achievement dates due to Father's non-compliance. Ms. Norfork also confirmed Father's testimony regarding compliance with the permanency plans.

         Ms. Norfork further testified that the children were placed in a pre-adoptive foster home and had been there for the last ten months. Ms. Norfork stated that she had observed the children to be bonded with the foster family and in her opinion it would be detrimental to remove the children from their current placement.

         Lastly, Foster Mother testified that the children had bonded with her family, including the family's four biological children still living in the home. Further, Foster Mother testified that the children call her "Mom" and her husband "Dad" and refer to Father only as "Daddy Tony." Foster Mother also states that none of the children ask to see Father; in fact, one child expresses apprehension about the possibility of having to return to Father's home. According to Foster Mother, the children had progressed since being placed in her home. Foster Mother also opined that termination would be in the best interest of the children and that it would be devastating for her family if the children were removed.

         Ultimately, the trial court found each witness credible, including Father as he "d[id] not deny the facts of the Petition, merely the legal conclusions." The trial court also found that based on the evidence presented, there was clear and convincing evidence that (1) Father abandoned minor children pursuant to Tennessee Code Annotated sections 36-1-113(g)(1) and 36-1-102(1)(A)(i); (2) Father did not substantially comply with the permanency plans pursuant to Tennessee Code Annotated sections 36-1-113(g)(2) and 37-2-403(a)(2); (3) "the conditions which led to the removal of the children from the home of the Father still exist and other conditions exist which in all probability would cause the children to be subject to further abuse and/or neglect[;]" (4) the children are currently placed in a home that will likely adopt them; and (5) it is in the children's best interest that Father's parental rights be terminated.

         Therefore, the trial court issued a written order on May 16, 2017, terminating Father's parental rights and awarding full guardianship to DCS. From this order, Father appeals.

         ISSUES PRESENTED

         Father presents only one issue in his brief, which we have slightly reworded and separated into two issues for clarity, as follows:

1. Whether the trial court erred in finding that DCS proved by clear and convincing evidence that grounds existed for the termination of Father's parental rights.
2. Whether the trial court erred in finding that termination was in the minor children's best interest.

         STANDARD OF REVIEW

         As explained by the Tennessee Supreme Court:

A parent's right to the care and custody of her child is among the oldest of the judicially recognized fundamental liberty interests protected by the Due Process Clauses of the federal and state constitutions. Troxel v. Granville, 530 U.S. 57, 65 (2000); Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption of Female child, 896 S.W.2d 546, 547-48 (Tenn. 1995); Hawk v. Hawk, 855 S.W.2d 573, 578-79 (Tenn. 1993). But parental rights, although fundamental and constitutionally protected, are not absolute. In re Angela E., 303 S.W.3d at 250. "'[T]he [S]tate as parens patriae has a special duty to protect minors . . . .' Tennessee law, thus, upholds the [S]tate's authority as parens patriae when interference with parenting is necessary to prevent serious harm ...

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