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In re Noah S.

Court of Appeals of Tennessee, Nashville

January 23, 2018


          Assigned on Briefs December 4, 2017

         Appeal from the Juvenile Court for Coffee County No. 16J-0667 Jere M. Ledsinger, Judge

         This is a termination of parental rights case. The trial court terminated Appellant Mother's parental rights on the grounds of: (1) abandonment by willful failure to support; and (2) failure to substantially comply with the reasonable requirements of the permanency plan. Because Appellees did not meet their burden to show that Mother willfully failed to provide support for the children, we reverse the trial court's order as to the ground of abandonment by willful failure to support. The trial court's order is otherwise affirmed.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed in Part, Reversed in Part, and Remanded

          C. Brent Keeton, Manchester, Tennessee, for the appellant, Julie C.

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

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



         I. Background

         This case concerns two minor children, Noah S. (d.o.b January, 2009) and Jade C. (d.o.b. December, 2009).[1] The children's parents are Brian S. ("Father") and Appellant Julie C. ("Mother").[2] On August 7, 2014, the State of Tennessee Department of Children's Services ("DCS" or "Appellee") received a referral alleging that the children were abandoned based on their parents' incarceration. At approximately 1:00 a.m., on the morning of August 7, 2014, the parents and both children were observed at a gas station near their home. The parents were arguing and then separated, with Jade following Father and Noah following Mother. Because Jade could not keep up with Father, who was walking into a field with a six-pack of beer, she returned to follow Mother. Mother scolded the child for attempting to follow her -- telling her to "Get" and "Go Away." Mother then walked away, leaving Jade alone in the field. Bystanders attempted to talk to the child, but Mother "drove up and forced Jade to get in the car." Mother "reeked of alcohol and the children were with her in the car" when law enforcement arrived on the scene. Father was also intoxicated, and the children "appeared to be very thirsty and possibly hungry." Both parents were arrested. Father has an extensive criminal record for crimes involving domestic violence and assault. Mother was arrested for driving on a revoked license, driving under the influence ("DUI"), and child endangerment. The children were placed in state custody where it was determined that they had "significant delays in verbal abilities."

         A permanency plan was developed on September 4, 2014. The plan's goal was to return the children to their parents. The plan required Mother to pay child support if ordered by the court, and (prior to any child-support order) to make a good-faith payment each month to the Child Support Receiving Unit. Mother was also required to: (1) maintain regular contact with DCS; (2) maintain regular and positive visitation; (3) notify DCS of any changes in relation to visitation; (4) notify DCS of any changes in address, phone number, or employment; (5) complete and alcohol and drug ("A&D") assessment and follow the recommendations; (6) sign releases for DCS; (7) provide the family service worker with documentation of completed A&D treatment; (8) attend parenting classes, provide DCS with proof of completion of the classes, and apply the skills learned in the classes during visits with the children; (9) attend all court hearings and follow all court orders and /or probation requirements, including paying any fines arising from her legal issues. Mother participated in the development of the plan and signed the criteria and procedures for termination of parental rights. The trial court later added a requirement to the plan that DCS arrange a trauma assessment for Mother and that Mother complete the assessment. The juvenile court held an adjudicatory hearing on September 25, 2014. At the hearing, Mother did not contest the allegations in the dependency and neglect petition filed by DCS. Based on the record and Mother's stipulation, the trial court entered an order on November 13, 2014, finding the children dependent and neglected.

         A second permanency plan was developed on August 18, 2015. In addition to the requirements outlined in the initial plan, the second plan added the goal of adoption, and added requirements that Mother: (1) obtain and maintain stable housing; obtain a legal means of support; (2) provide DCS with proof of employment; (3) provide DCS with information regarding any roommates or paramours for background checks; and (4) submit to a mental-health assessment through an approved provider and follow all recommendations thereof. The plan was ratified on November 2, 2015. A third permanency plan was developed on July 7, 2016. The plan's goals and Mother's requirements under the third plan remained the same. The third plan was ratified on July 19, 2016.

         On January 6, 2015, Mother received her second DUI conviction and her first conviction for driving on a revoked license. Mother was furloughed to Coffee County Drug Court. The drug court performed an A&D assessment and placed Mother in intensive outpatient "IOP" treatment.

         Initially, Mother cooperated with her case manager and made progress toward reunification. Kimberly Rhodes, the DCS case manager for the children, testified that until the fall of 2015, Mother received Social Security Income ("SSI"), paid rent, retained housing, had a part-time job, attended intensive-outpatient treatment and Alcoholics Anonymous meetings, complied with her probation, and maintained contact with DCS. However, in September 2015, Mother became involved with a methamphetamine offender, whom she met at drug court. During this time, Mother began using methamphetamine and was convicted of a second offense of driving on a revoked-license. On October 27, 2015, she was convicted of violating her probation for failing a drug screen for alcohol and methamphetamine and not reporting to IOP treatment. Around this time, Mother also lost her SSI and her housing. On November 19, 2015, Mother tested positive for methamphetamine.

         Mother began treatment at an inpatient facility on December 16, 2015. Although Mother allegedly completed this treatment on January 12, 2016, Ms. Rhodes testified, that despite DCS's request, Mother never provided DCS with documentation showing that she completed the program prior to trial. Mother testified that after she completed the inpatient program, she attended Alcoholics Anonymous and Narcotics Anonymous meetings, but she admitted that she never provided proof that she attended those meetings.

         Mother's visitation with the children was consistent until fall of 2015, when Mother violated her probation and failed a drug screen. On April 22, 2016, Mother was involved in a domestic altercation with Father and his mother. Ms. Rhodes testified that Mother admitted that she, Father, and his mother had been drinking prior to the altercation. DCS suspended Mother's visitation.

         To resume visitation, DCS required Mother to complete random drug screens and to keep DCS informed of her living situation. At trial, Mother admitted that she was asked to complete a drug screen and knew that completion of a drug screen was required to resume visitation with the children. However, after April 2016, she failed to submit to a single drug screen. Mother blamed her failure to take the drug screen on a lack of transportation. The children's caseworker testified that she offered to come to Mother to administer the drug screen, but Mother would make-up an excuse as to why she could not meet. For almost the entire year preceding trial, DCS had very little contact with Mother. Although Mother blamed DCS for not contacting her, Mother testified that she never raised any complaints regarding visitation to the children's Guardian ad Litem.

         In its petition to terminate her parental rights, DCS alleged three grounds against Mother: (1) abandonment by willful failure to support; (2) substantial noncompliance with the permanency plans; and (3) persistence of the conditions that led to the children's removal from Mother's custody. The trial court heard the petition to terminate Mother's parental rights on March 10, 2017 and April 25, 2017. On June 5, 2017, the trial court entered an order terminating Mother's parental rights. The trial court terminated Mother's parental rights on two grounds: (1) substantial non-compliance with the permanency plan; and (2) abandonment by willful failure to support. The trial court also found that termination of Mother's parental rights was in the children's best interests. Mother appeals.

         II. Issues

In her brief, Appellant raises five issues for review:
1. Did the trial court err in finding that the State had proven the ground of substantial non-compliance by clear and convincing evidence?
2. Did the trial court err in finding that the State had proven the ground of persistent conditions by clear and convincing evidence?
3. Did the trial court err in finding that the State had proven the ground of failure to pay child support by clear ...

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