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In re Veronica T.

Court of Appeals of Tennessee, Nashville

March 21, 2018

IN RE: VERONICA T., ET AL.

          Assigned on Briefs February 2, 2018

          Appeal from the Juvenile Court for Rutherford County No. TC2760 Donna Scott Davenport, Judge

          This appeal involves the termination of a mother's parental rights to her four minor children. The trial court found by clear and convincing evidence that four statutory grounds for termination had been proven and that termination is in the best interest of the children. We reverse with respect to two of the grounds for termination but otherwise affirm the trial court's order terminating the mother's parental rights.

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

          Carl Richard Moore, Murfreesboro, Tennessee, for the appellant, Cassie T.

          Herbert H. Slatery III, Attorney General and Reporter, Brian Allen Pierce, Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Children's Services.

          Brandon O. Gibson, J., delivered the opinion of the court, in which Charles D. Susano, Jr., and Richard H. Dinkins, JJ., joined.

          OPINION

          BRANDON O. GIBSON, JUDGE

         I. Facts & Procedural History[1]

         Cassie T. ("Mother") has four children who were born between 2003 and 2013. The Tennessee Department of Children's Services ("DCS") became involved with Mother and her children in July 2014 due to Mother's incarceration. Mother pleaded guilty to theft over $10, 000 in connection with a stolen vehicle and received a three-year sentence. She also pleaded guilty to possession or casual exchange of a controlled substance (cocaine) and received a ten-day sentence. Through DCS, Mother agreed to an immediate protection agreement allowing a relative to care for the children. Mother consented to a drug screen and tested positive for cocaine and oxycodone. After serving about two weeks in jail, Mother was released on supervised probation for the remainder of her sentence. DCS prepared a non-custodial permanency plan with tasks for Mother to complete, such as consenting to random drug screens, obtaining stable housing, and participating in an alcohol and drug assessment and following its recommendations.

         On August 1, 2014, the relative who was caring for the children informed DCS that she could no longer care for them. A second immediate protection agreement was executed, and the children were placed with another relative until mid-September 2014, when this relative likewise informed DCS that she could no longer care for them. Mother agreed to a third immediate protection agreement allowing the children to live with a third relative, Mother's sister, on September 16, 2014. The agreement provided that Mother would have no contact with the children until she passed two drug screens. Around this time, Mother committed another criminal offense, and she pleaded guilty to simple possession of a controlled substance. She also pleaded guilty to theft under $500. She was incarcerated for another eight-day period at some point around this timeframe.

         On October 14, 2014, DCS filed a petition to have the children adjudicated dependent and neglected with custody awarded to Mother's sister. At a hearing on November 6, 2014, Mother's sister testified that she could not continue caring for the children due to limited finances. That same day, the juvenile court awarded temporary custody to DCS pending an adjudicatory hearing. The juvenile court found probable cause that the children were dependent and neglected due to Mother's positive drug screen for cocaine and oxycodone, her failure to cooperate with DCS or pass additional drug screens, and her "apparent lack of concern for the children as evidenced by her failure to visit and her failure to inquire as to the welfare of the children."

         On November 21, 2014, the four children were placed in a foster home. On the same date, DCS formulated a permanency plan for Mother with a goal of returning the children to her. The plan provided that Mother was required to pass random drug screens and demonstrate sobriety before she could begin visits with the children. The plan also required Mother to follow the rules for visitation once it began, follow the rules of her probation, avoid additional criminal charges, provide proof of a legal source of income and stable housing, cooperate with home visits, develop a budget and a transportation plan and child care plan for the children, participate in a clinical drug and alcohol assessment and follow its recommendations, complete parenting classes, and pass random drug screens and pill counts within three hours of any request. Mother participated by phone, and a DCS caseworker discussed the details of the plan with her. While on the phone, Mother admitted to being under the influence of oxycodone and another drug, allegedly because of fibromyalgia, but she did not produce any prescription to her caseworker.

         Despite the entry of the permanency plan containing these responsibilities, Mother continued to use drugs and incur new criminal charges. She admittedly used cocaine weekly and abused oxycodone. She was unemployed and resided with different relatives. Mother was incarcerated again from early January 2015 until February 14, 2015. A few weeks after her release, she returned to jail in March or April of 2015 and remained there for about four months. While Mother was incarcerated, the juvenile court held the final hearing in the dependency and neglect case on April 13, 2015, and entered an adjudicatory order providing that custody of the children would remain with DCS. The court found that the children were dependent and neglected as children who were "without a parent" due to abandonment, whose parent was unfit to care for them due to "immorality or depravity" because of her abuse of cocaine and oxycodone, and who suffered from "neglect" due to drug exposure. See Tenn. Code Ann. § 37-1-102(b)(13)(A), (B), (G). Also during this term of incarceration, a revised permanency plan was developed on May 6, 2015, with the same responsibilities for Mother but an alternative goal of adoption. A caseworker from DCS visited Mother in jail and went over the plan with her. Mother also signed the criteria for terminating parental rights. Mother completed an alcohol and drug assessment with a parenting component while in jail in July 2015. The assessment recommended intensive outpatient treatment, random drug screens, and parenting classes. However, Mother had already informed her caseworker that she did not want prison services for AA or parenting.

         Upon her release in early August 2015, Mother was required to participate in a drug rehabilitation program as a condition of her probation. For a couple of months, she lived at a halfway house funded through the drug court program and was employed at a restaurant. Mother had not seen the children since they were placed with relatives a year earlier, and she wrote a few letters to the oldest child. While at the halfway house, Mother failed a drug screen and tested positive for cocaine. She did not complete the treatment program at the halfway house and left in October to live with another relative. According to Mother's testimony, she was incarcerated two more times at some point during this general timeframe for "two ten-day sanctions" periods, apparently for violating her probation. She would later admit to her caseworker that she was using heroin and cocaine during this period after she left the halfway house.

         Mother was arrested again on November 2, 2015. This time, she was charged with "possession with intent" and tampering with evidence, and she was sent to a women's prison. On November 19, 2015, DCS filed a petition to terminate Mother's parental rights based on four statutory grounds - abandonment by failure to provide a suitable home; abandonment by an incarcerated parent exhibiting wanton disregard for the children's welfare; substantial noncompliance with a permanency plan; and persistent conditions. See Tenn. Code Ann. § 36-1-113(g)(1)-(3). When the petition was filed, the children had been residing in their foster home for two days shy of one year with no contact from Mother aside from a few letters. Mother remained incarcerated at the women's prison throughout most of the termination proceeding due to her November 2 arrest. The trial court appointed a guardian ad litem and appointed counsel for Mother.

         The trial court conducted a bench trial over the course of seven days, beginning on June 14, 2016, and continuing over the next few months. When the trial began, Mother remained incarcerated, but by the time the trial ended, she had been released on parole and was residing at a halfway house. The trial court heard testimony from Mother, her husband, three DCS caseworkers, the oldest child, the foster mother, Mother's probation officer, and representatives from two halfway houses. Ultimately, the trial court entered a lengthy written order in which it found by clear and convincing evidence that all four grounds for termination had been proven and that termination was in the best interest of the children. Mother timely filed a notice of appeal.[2]

         II. Issues Presented

         On appeal, Mother presents very narrow issues regarding each of the four grounds for termination, and she does not raise any issue regarding the best interest analysis. Still, the Tennessee Supreme Court has held that "in 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 best interests, regardless of ...


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