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In re Homer D.

Court of Appeals of Tennessee, Nashville

March 9, 2018

IN RE HOMER D., ET AL.

          Assigned on Briefs August 1, 2017

         Appeal from the Juvenile Court for Overton County No. 16-JV-74 Daryl A. Colson, Judge

         This is a termination of parental rights case. The trial court terminated Appellant's parental rights on the grounds of: (1) abandonment by willful failure to support; (2) persistence of the conditions that led to the children's removal; and (3) substantial noncompliance with the requirements of the permanency plans. The trial court also found that termination of Appellant's parental rights was in the children's best interest. On appeal, the Tennessee Department of Children's Services concedes that the persistence of conditions ground is not applicable to Appellant. We agree and accordingly reverse the trial court's reliance on that ground for termination. Although we also reverse the trial court's finding of abandonment, because it is only necessary that one ground for termination be established, the trial court's termination order is otherwise affirmed.

         On Remand from the Supreme Court; Judgment of the Juvenile Court Reversed in Part, Affirmed in Part, and Remanded

          Matthew S. Bailey, Sparta, Tennessee, for the appellant, Sarah R. P. B.

          Herbert H. Slatery, III, Attorney General and Reporter; and Brian A. Pierce, Assistant Attorney General, for appellees, Bryan C. D. and Tennessee Department of Children's Services.

          Arnold B. Goldin, J., delivered the opinion of the court, in which Frank G. Clement, Jr., P.J., M.S., and John W. McClarty, J., joined.

          OPINION

          ARNOLD B. GOLDIN, JUDGE

         BACKGROUND AND PROCEDURAL HISTORY

         This termination of parental rights case is on remand from the Tennessee Supreme Court for consideration on the merits. In our initial review of the case, we determined that this Court lacked subject-matter jurisdiction over the appeal based on the absence of a timely notice of appeal signed by the Appellant. In its recent decision, In re Bentley D., No. E2016-02299-SC-RDO-PT, 2017 WL 5623577 (Tenn. Nov. 22, 2017), the Tennessee Supreme Court held that the signature requirement contained in Tennessee Code Annotated section 36-1-124(d), requiring the appellant to sign the notice of appeal, was satisfied by the appellant's attorney's signature on the notice of appeal. In this case, the original notice of appeal, which was timely filed, was signed by the Appellant's attorney. Accordingly, under the holding in In re Bentley D., this Court has jurisdiction to adjudicate this appeal on its merits. We now turn to that task.

         In this appeal, we address the termination of parental rights of S.P.B. ("Mother") to her two children, C.D. and H.D. ("the children").[1] C.D. was born in November 2012. H.D. was born in May 2014.

         A little over a year after H.D.'s birth, in June 2015, the Tennessee Department of Children's Services ("the Department") received a referral alleging, among other things, that the children's grandmother had "been using and selling pain pills and subutex." The Department looked into the matter, and on June 18, 2015, it filed a petition in the Overton County Juvenile Court to declare the children dependent and neglected. According to the dependency and neglect petition, a Department case manager had located the children at the home of the children's grandmother. The home's basement allegedly had standing water with mold, and the petition stated that the children's grandmother had tested positive for buprenorphine and amphetamine after submitting to a drug screen. The children's grandmother denied knowledge of Mother's whereabouts and claimed to have had no contact with Mother since July 2014. The petition stated that a case manager subsequently met with Mother at the Overton County Jail on June 17. During this meeting, Mother allegedly admitted to a long history of drug use.

         The children were placed in the Department's custody in light of the allegations set forth in the dependency and neglect petition, and eventually, both were adjudicated dependent and neglected.[2] Following their removal from their grandmother's home, family permanency plans were created. The first permanency plan, which was developed on July 14, 2015, was ratified by the Juvenile Court on November 18, 2015. This plan contained several requirements for Mother, including the following: (1) participate in therapeutic supervised visitation with the children; (2) contact the child support office to set up payments; (3) keep weekly contact with the Department; (4) maintain steady housing for at least six months; (5) provide proof of legal income; (6) submit to drug screens; (7) complete a psychological evaluation with a parenting component and follow recommendations; (8) complete an alcohol and drug assessment and follow recommendations; and (9) sign releases so that the Department can receive information and be able to talk to service providers. A revised permanency plan containing these same requirements was ratified in February 2016.

         During the period following the children's entry into the Department's custody, the Department struggled to maintain communication with Mother and monitor her compliance with the permanency plan requirements. For example, in an affidavit filed with the Juvenile Court in November 2015, a Department case manager indicated that Mother had revoked the release that would allow the Department to access Mother's assessments from service providers. The same affidavit also detailed some of the Department's failed efforts to stay in contact with Mother. Subsequent to the filing of this affidavit, by order entered on December 2, 2015, the Juvenile Court suspended Mother's visits with the children "due to her lack of contact with the Department, lack of contact with her attorney and lack of cooperation." Later, pursuant to an "Annual Permanency Hearing Order" entered on May 4, 2016, the Juvenile Court determined that Mother was not in substantial compliance with the current permanency plan "in that [she] failed to maintain contact with the Department."

         On July 15, 2016, the Department filed a petition to terminate Mother's parental rights.[3] As specific grounds for the termination, the Department asserted that Mother was in substantial noncompliance with the provisions of the permanency plans and that she had abandoned the children by willfully failing to support them.[4] The petition also averred that it was in the best interest of the children to terminate Mother's parental rights.

         A hearing on the Department's termination petition was held on December 20, 2016. At the time of trial, Mother was incarcerated. According to her testimony, she had been incarcerated for several months on account of past indictments.

         In large part, the proof at the hearing focused on Mother's failure to maintain contact with the Department and her lack of compliance with the requirements of the permanency plans. Proof was also offered regarding the status of the children and their well-being since having come into the Department's custody. To this end, the children's foster mother specifically testified that the children seemed well-adjusted and bonded in her home. Although the children allegedly had behavior issues when they entered her home, the foster mother testified that these issues had "got[ten] a lot better." Upon the conclusion of the hearing, the Juvenile Court orally ruled that the Department had met its burden of proof regarding the grounds for termination.

         A final decree memorializing the Juvenile Court's oral ruling was entered on January 4, 2017. In its final decree, the Juvenile Court found (1) that Mother had willfully failed to support the children for the four months immediately preceding the filing of the petition to terminate, (2) that Mother's parental rights should be terminated pursuant to the persistence of conditions ground codified at Tennessee Code Annotated section 36-1-113(g)(3), and (3) that Mother had been "substantially non-compliant with the statement of responsibilities in the permanency plans." The Juvenile Court further determined that there was clear and convincing evidence that termination was in the children's best interest. This appeal followed the entry of the final decree.

         ISSUES PRESENTED

         In her appellate brief, Mother raises the following three issues related to the termination of her parental rights:[5]

. Whether the juvenile court improperly determined that Appellant abandoned her children by failing to support them.
. Whether the juvenile court improperly determined that Appellant did not substantially comply with the permanency plan.
. Whether the juvenile court improperly concluded that the termination of Appellant's parental rights was in the children's best interests.

         Although Mother did not specifically challenge the Juvenile Court's determination that her parental rights should be terminated based on the persistence of conditions ground, her failure to do so does not curb our review on appeal. In order to "ensure that fundamental parental rights are not terminated except upon sufficient proof, proper findings, and fundamentally fair procedures, " we are required to review the trial court's findings as to each ground for termination and as to whether termination is in the child's best interest. See In re Carrington H.,483 S.W.3d 507, 525-26 (Tenn. 2016) ("[I]n an appeal from an order terminating parental rights the Court of Appeals must review the trial court's findings as to each ground for termination and as to whether termination is in the child's ...


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