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In re Alivia F.

Court of Appeals of Tennessee, Nashville

January 30, 2018

In re ALIVIA F.

          Session November 8, 2017

         Appeal from the Chancery Court for White County No. 2015-CV-41 Ronald Thurman, Chancellor

         A mother appeals from the termination of her parental rights to her child. The chancery court found clear and convincing evidence of two statutory grounds for termination: abandonment by willful failure to support and persistence of conditions. The court also found that termination of the mother's parental rights was in the child's best interest. Because we conclude that the evidence was less than clear and convincing as to each ground for termination, we reverse.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed

          Cindy Morgan, Sparta, Tennessee, for the appellant, Juanita Y.

          Mark E. Tribble, Cookeville, Tennessee, for the appellees, Jermaine F. and Shannon F.

          W. Neal McBrayer, J., delivered the opinion of the court, in which Frank G. Clement Jr., P.J., M.S., and Thomas R. Frierson II, J., joined.

          OPINION

          W. NEAL McBRAYER, JUDGE.

         I.

         The marriage of Juanita Y. ("Mother") and Jermaine F. ("Father") produced one child, Alivia F., born in July 2008. The parents separated in 2010 and eventually divorced, with Mother being awarded primary custody of the child.

         In late July 2013, Mother left a "slurred" voicemail message in response to a call from a case manager with the Tennessee Department of Children's Services ("DCS"). As a result, a DCS team leader visited Mother's home, where she observed Mother to be "impaired." Mother's drug screen was positive for methamphetamine, amphetamine, buprenorphine, benzodiazepines, and opiates. And she admitted to a history of drug abuse. As a result, DCS placed Alivia in Father's care.[1]

         At a subsequent adjudicatory hearing, Mother stipulated to the facts in DCS's petition related to her use and abuse of illegal drugs. On October 10, 2013, the Juvenile Court for White County, Tennessee, entered an order adjudicating Alivia to be dependent and neglected and placing her in Father's sole temporary custody.

         After successfully completing the recommendations of her first permanency plan, DCS returned custody of Alivia to Mother in January 2014. But Mother's reunion with Alivia turned out to be short-lived. A few months later, after receiving a report that Mother was involved in a fight at a known drug user's home, DCS began another investigation. At that time, Mother's hair follicle screen was positive for methamphetamine and oxycodone.

         DCS sought emergency temporary custody of Alivia and removed her from Mother's care and placed her with Father. On or around August 29, 2014, the juvenile court again entered an order adjudicating Alivia to be dependent and neglected.

         Thereafter, Mother participated in the creation of another permanencyplan with DCS. Mother was allowed supervised visitation with Alivia two hours a week. Although

         Mother completed intensive outpatient rehabilitation as recommended, she was only partially compliant with DCS's requirements.

         On May 13, 2015, Father and Shannon F. ("Stepmother") filed a petition for termination of Mother's parental rights and for adoption in the Chancery Court for White County, Tennessee. The petition alleged two grounds for termination: abandonment by willful failure to support and persistence of conditions. The petition also alleged ...


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