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In re Riley W.

Court of Appeals of Tennessee, Knoxville

March 12, 2018

IN RE RILEY W.

          Session February 21, 2018

         Appeal from the Juvenile Court for Hamilton County No. 276891 Robert D. Philyaw, Judge.

         Lindsey W. ("Mother") appeals the September 25, 2017 order of the Juvenile Court for Hamilton County ("the Juvenile Court") terminating her parental rights to the minor child Riley W. ("the Child") upon the grounds of substantial noncompliance with the permanency plan pursuant to Tenn. Code Ann. § 36-1-113(g)(2) and persistent conditions pursuant to Tenn. Code Ann. § 36-1-113(g)(3). We find and hold that grounds for terminating Mother's parental rights to the Child pursuant to Tenn. Code Ann. §§ 36-1-113(g)(2) and (g)(3) were proven by clear and convincing evidence and that it was proven by clear and convincing evidence that the termianation was in the Child's best interests. We, therefore, affirm the September 25, 2017 order of the Juvenile Court terminating Mother's parental rights to the Child.

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

          David C. Veazey, Chattanooga, Tennessee, for the appellant, Lindsey W.

          Herbert H. Slatery, III, Attorney General and Reporter; and Erin A. Shackelford, Assistant Attorney General for the appellee, State of Tennessee Department of Children's Services.

          D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which CHARLES D. SUSANO, JR. and THOMAS R. FRIERSON, II, JJ., joined.

          OPINION

          D. MICHAEL SWINEY, CHIEF JUDGE.

         Background

         The Child was taken into State custody in June of 2016 after being born drug-exposed and was subsequently adjudicated dependent and neglected. In April of 2017, the State of Tennessee Department of Children's Services ("DCS") filed a petition seeking to terminate the parental rights of Mother and John P. ("Father")[1] to the Child. The case proceeded to trial in July of 2017. Mother failed to appear at trial.

         At trial, Channing Phillips, a family service worker with DCS, testified. Ms. Phillips testified that she acquired responsibility for the Child's case in October of 2016. Ms. Phillips explained that the Child had entered State custody on June 5, 2016 after DCS received a referral for a drug exposed child at birth at Erlanger. Ms. Phillips stated that Mother had drug issues.

         A permanency plan ("the Permanency Plan")[2] initially dated in July of 2016 was created for the Child. Ms. Phillips testified that a permanency plan meeting was held on October 11, 2016. At that meeting, the Permanency Plan was reviewed, and Mother signed the statement of responsibilities. Ms. Phillips explained that although the Permanency Plan was in place when she took over the case, Mother did not sign the statement of responsibilities until the October meeting. Under the Permanency Plan, Mother was to have an A&D assessment and follow the recommendations of the assessment, submit to drug screens and verify sobriety, refrain from using illegal substances and from abusing legal substances such as alcohol and prescription medications, participate in domestic violence classes or counseling, work with in-home service providers on maintaining good parenting skills and making sure her home is clean and safe, provide proof of legal verifiable income, resolve legal issues and not obtain any new legal charges, stay in contact with DCS, visit the Child regularly, and maintain housing for three consecutive months, among other things. Ms. Phillips was asked if Mother ever indicated that she did not understand her responsibilities under the Permanency Plan, and Ms. Phillips stated: "No, [she] always - - [she] knew what was on it and what [she] needed to do."

         Ms. Phillips testified that Mother eventually did have an A&D assessment. The recommendation of the A&D assessment was for Mother to attend an intensive out- patient program at the Council for Alcohol & Drug Abuse Services ("CADAS"). At the time of trial, Mother had not even begun an intensive out-patient program.

         Mother reported that she was working, and Ms. Phillips confirmed this by calling Mother's place of work. Mother, however, failed to provide a paystub or other evidence of income. Mother reported that she gets paid daily and does not have a paystub or a way to track her income.

         Ms. Phillips testified that Mother did submit to random drug screens, but tested positive for illegal substances. Ms. Phillips stated that Mother disputed the failed drug screens. Ms. Phillips explained:

[Mother] would always have an excuse for the drug screens. She would say maybe she was kissing [Father] and that's how she was positive for certain things, or maybe it was the house she was living in. You know, she had different excuses. Or maybe the drug test was wrong.

         To Ms. Phillips knowledge, Mother never had an independent drug screen done.

         Mother failed to provide proof of housing. Ms. Phillips testified that stability has been a problem for Mother. Since Ms. Phillips has had the case, Mother has had three or four different addresses. Mother gave one address as a mailing address, but has never lived at that address. Ms. Phillips stated that at one time Mother reported that she had a place and that she was going to be able to pay rent and have a lease. Ms. Phillips requested a copy of the lease, but Mother never provided one. The last time Ms. Phillips spoke with Mother, Mother reported living with a friend.

         Ms. Phillips occasionally supervised visitation between Mother and the Child and "would try to be in the office when the visits were going on so [she] could step in and see kind of what was going on." Ms. Phillips did not have any concerns about the visitations themselves. She stated that Mother brought snacks, fed the Child, and changed the Child's diaper.

         Ms. Phillips was asked what she did to assist Mother, and she testified that she made several A&D appointments for Mother; provided bus passes; gave her resources for grief counseling and parenting classes; followed up with Transformation Project, which the previous caseworker had tried to get Mother into; followed up with Sound Living Counseling; searched for Section 8 housing and mailed in an application for housing; typed up a referral for Mother for Chattanooga Community Kitchen for services; provided flyers for a health clinic, domestic violence classes, and a financial program; and gave Mother a referral for a Room at the Inn. When Mother could not get in to a Room at the Inn due to her lack of identification, Ms. Phillips directed Mother on how to go to the Department of Motor Vehicles and obtain an identification card.

         Mother did complete the A&D assessment and went to the first intake appointment for counseling. Ms. Phillips, however, does not believe that Mother has made enough progress for the Child to be placed in her care. Ms. Phillips has concerns about Mother's drug use, her failure to complete an intensive out-patient program, her lack of stable housing, her lack of verifiable income, and an incident that occurred during a visitation. Ms. Phillips would not be comfortable allowing Mother unsupervised visitation.

         Ms. Phillips testified that the Child is placed with a foster family and is doing well. The Child is healthy and exhibits no developmental delays. She attends daycare and is walking and starting to run. Ms. Phillips testified that the Child does not appear to have any lingering effects from the drug exposure at birth. Ms. Phillips believes it is in the Child's best interest for Mother's rights to be terminated.

         Katharine Wolfe Blackwell, a transporter for DCS, testified at trial. She has been a transporter for almost 18 years. Ms. Blackwell transports the Child and supervises the visitations. Ms. Blackwell began supervising the Child's visitations on October 11, 2016, and her last visit was July 11, 2017. Ms. Blackwell testified that in total she supervised 34 visits. Of those 34 visits, Mother attended 23 and missed 11.

         Ms. Blackwell had no concerns about Mother's interactions with the Child during visitation. Ms. Blackwell stated: "Interaction was appropriate and she met the child's needs about feeding her and changing her and hold her and everything." Mother would bring snacks for the Child and has brought a stuffed animal to the visits.

         Ms. Blackwell did have concerns, however, about a serious incident that occurred during one visit. She described the visit stating:

That was July the 11th. We were going to be off on July the 4th. So on a visit of June the 27th I asked [Mother] if we could do a two-hour visit on July the 11th, because we were going to be off on the 4th, the day of her visit. And so we both agreed that we would do it from 9:00 to 11:00.
So on July the 11th she came in and visitation went as it always has. And [the Child] became kind of fussy, and so [Mother] asked me if she could bring her outside the visitation room and walk her up and down in front of the visitation room. And in the past, I agreed to let her do it, because when [the Child] has to have a lot of things that she can focus on. I mean, she's very smart. And so [Mother] was outside. She was walking up and down in front of the visitation room. And she asked me what time it was. And I told her it was approximately 10:27. And she stated that she needed to get out of there. She needed to get to work. Which I thought was very odd, because it was a two-hour visit. And regular visits is 10:00 to 11:00 scheduled, so I didn't understand why, you know, she wasn't going to do her two hours.
So [Mother] bent over in front of my cube in the - - I'm sorry - - in the visitation room to pick up her child and a toy. And when she stood up and walked off, I saw a piece of paper right where she was standing. And so I went over. I picked the paper up. And I opened it up. And there was powder and crystals that was inside the paper. There were no active visits going on in the office at the time. Her visit was the only one.
There was a case manager in my cube at the time. And I asked her if she could stay in the cube so I could see if I could find the case manager. She was in a meeting. So I went and washed my hands. Got a dry paper towel. Put the paper in it. Took it back to my cube. Hid it. Got [the Child] and we left. [Mother] also followed me out. I text the case manager to let her know that I found a powdery substance in a piece of paper that was right in the same spot that [Mother] was standing in.

         Mother did not see Ms. Blackwell find the piece of paper because Mother had her back to Ms. Blackwell at the time. Ms. Blackwell testified that she does not know what was in the paper.

         Ms. Phillips testified that she received the text from Ms. Blackwell, retrieved the paper from where Ms. Blackwell had hidden it, notified her supervisor, and then called the police. Ms. Phillips tried to email Mother to let Mother know that they needed to speak about the incident. Ms. Phillips stated:

She e-mailed me back. It's like she wanted to talk about it over e-mail. I felt like it was best that we talked about it over the phone due to the fact that we were advised not to have any more visits after that. Once I spoke to her on the phone - - I called her at the new number that she gave me -- she got very agitated. She asked if we had any cameras in the DCS office. I said no. I told her to talk to David, her attorney, because David already knew about it. And she said that she didn't understand why we were blaming her and that she believed that Kathy planted it for -- on -- for [Mother], that Kathy had it and was blaming it on [Mother]. . . . When I told her what it was, she never -- you know, it was like she was more, that's just not mine. That's not mine. I didn't drop that. And then she e-mailed me back and she -- you know, that's when I forwarded her on to David and I just, you know, said please talk to David about this.

         Ms. Phillips testified that the police declined to arrest Mother because Mother was not present when they collected the paper.

         Kristen D. ("Foster Mom") is the Child's foster mother. The Child has lived with Foster Mom since February of 2017. Foster Mom testified that the Child is her cousin. When Foster Mom and her husband found out that the State had custody of the Child, they contacted DCS and requested to be allowed to be foster parents. Foster Mom further explained that she is related to Father. She stated, however, that she does not have a relationship with either Father or with Mother. Foster Mom testified that Father and Mother do not contact her, and she does not allow them any sort of visitation with the Child.

         Foster Mom stated that her household consists of "Me, my husband, and we have another adult who lives there, Alan, who we've had guardianship of him when he was 16. He was a youth in our home. We were his youth leaders at the time. And his mom passed away so he's been with us since."

         Foster Mom testified that the Child has allergies, but the Child is healthy other than that. Foster Mom testified that the Child is bonded with Foster Mom's family. Foster Mom and her husband wish to adopt the Child if the Child becomes available for adoption.

         After trial, the Trial Court entered its very detailed Order Terminating Parental Rights and Order of Full Guardianship on September 25 2017, terminating Mother's parental rights to the Child after finding and holding, inter alia, that grounds for termination for substantial noncompliance with the Permanency Plan pursuant to Tenn. Code Ann. § 36-1-113(g)(2) and for persistent conditions pursuant to Tenn. Code Ann. § 36-1-113(g)(3) had been proven by clear and convincing evidence and that it had been proven by clear and convincing evidence that the termination of Mother's parental rights was in the Child's best interests. In the September 25, 2017 order the Juvenile Court specifically found and held, inter alia:

7) The subject child was born on June 5, 2016 at Erlanger Hospital. The Department received a referral alleging drug exposed child. The hospital sent out the child's meconium for accurate testing of the child's drug exposure. The results indicated that the meconium was positive for amphetamine and methamphetamine.
8) The mother, [Mother], used methamphetamine during her pregnancy. The Respondents resided together for the duration ...

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