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In re Michael O.

Court of Appeals of Tennessee, Jackson

January 26, 2018


          Assigned on Briefs December 4, 2017

          Appeal from the Juvenile Court for Tipton County No. 16-JV-256 William A. Peeler, Judge

         The trial court terminated Father's parental rights on the ground of abandonment by demonstrating a wanton disregard for his child's welfare. DCS failed to offer evidence that Father knew of the child's existence when Father was engaging in the behavior that demonstrated wanton disregard. Accordingly, we reverse the termination of Father's parental rights.

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

          Frank Deslaurier, 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.




         Anthony O. ("Father") is the natural and legal parent of the minor child.[1] At the time of the termination hearing the child was less than one year old. Children's mother, Chelsea S. ("Mother"), surrendered her parental rights to the children before the trial court on November 11, 2016. Therefore, this case arises solely from Father's appeal of the termination of his parental rights.

         The minor child was born in early June 2016, and placed in the custody of the Tennessee Department of Children's Services ("DCS") on June 17, 2016.[2] At this time, DCS was already working with Mother and Father regarding their three older children, who had been in DCS custody since August 27, 2015. The three older children were removed from Mother and Father's home due to drug use, drug paraphernalia found in the home, and environmental neglect. See In re Aaralyn O, et al., No. W2017-01411-COA-R3-PT, 2018 WL 468246 (Tenn. Ct. App. Jan. 18, 2018).

         When the minor child was born, Father was incarcerated. Mother had been evicted from her home prior to the child's birth; however, Mother was able to stay with a family friend after the child was born, but this was not a permanent arrangement. Thus, Mother lacked stable housing. Mother was also prescribed methadone throughout her pregnancy, and she attended a methadone clinic. After the child was born, meconium test results confirmed that the child was positive for methadone. This led to the child experiencing severe withdrawal symptoms during his first few months of life.

         On June 14, 2016, Mother took the child to a doctor's appointment. The child's pediatrician later reported that Mother seemed to be under the influence during the appointment. The pediatrician stated that during the appointment Mother kept falling asleep and was inattentive to the child. It was also reported that Mother placed the child in the front seat of her vehicle when she left the doctor's appointment.

         Two days later, on June 16, 2016, Mother reportedly rear-ended another vehicle while the child was in Mother's vehicle. Although the child was not injured, Mother was given a ticket for driving without a license and having no insurance.[3] Mother then contacted DCS social worker Bridget Norfork ("Ms. Norfork") for assistance with the child. Upon meeting, Ms. Norfork observed that the child was hungry. Mother informed Ms. Norfork that she had only a small amount of formula for him at that time; however, she had an appointment at WIC[4] the following Monday and would obtain more formula then.

          The child was placed in DCS's custody on June 17, 2016, based upon DCS's determination that Mother and Father made little to no progress in remedying the conditions that led to the removal of their oldest three children and were non-compliant with DCS's recommendations. Thus, Mother's and Father's actions, or inactions, rendered it unsafe for the child to remain in his parents' care. The child has remained in DCS's custody since June 17, 2016, and Father has never met the child.

         On November 17, 2016, DCS filed a petition to terminate Father's parental rights on the ground of abandonment by an incarcerated parent by exhibiting a wanton disregard for the child. At the hearing, the trial court heard testimony from Father, Ms. Norfork, Michelle S. ("Foster Mother"), and Zach S. ("Foster Father"). 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.

         Additionally, Father affirmed that he was charged with vandalism in September 2015. As a result, Father was found to have violated his probation and, in March 2016, was sentenced to five years incarceration to be served at thirty percent. Father testified, however, that with good time credits, his expected release date is January 2018.[5]Because the child was born following Father's current incarceration, Father acknowledged that he has never met this child.

         Father also conceded that he did have a history of drug use and that he had continued to use drugs intermittently until he was incarcerated in March 2016. However, he also stated that he had been drug free for approximately fifteen months, essentially the entire time he had been incarcerated.

         Lastly, Father testified that at the time of the termination hearing, he had a job pursuant to a prison work release program packing boxes at a warehouse. He asserted that he was paid about $7.25 an hour and earned approximately $190 per week after paying room and board. Father had, additionally, saved approximately $2, 000 at the time of trial. However, he also ...

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