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In re Authur R.

Court of Appeals of Tennessee, Knoxville

April 3, 2018

In re AUTHUR R.

          Session November 14, 2017

          Appeal from the Juvenile Court for Hamilton County No. 269010 Robert D. Philyaw, Judge No. E2017-00782-COA-R3-PT

         This is a termination of parental rights case focusing on the minor child, Authur R. ("the Child"), of Lola R. ("Mother") and Authur D. ("Father"). The Child was placed in protective custody on June 13, 2013, after Mother was discovered to be under the influence of illegal drugs while the Child was in her custody. The Hamilton County Juvenile Court ("trial court") adjudicated the Child dependent and neglected on November 26, 2013. On November 25, 2015, the Tennessee Department of Children's Services ("DCS") filed a petition to terminate the parental rights of both Mother and Father. An amended petition to terminate was subsequently filed on May 6, 2016. DCS alleged as a basis for termination against both parents the statutory grounds of (1) abandonment by willful failure to visit, (2) abandonment by willful failure to support, (3) abandonment by an incarcerated parent, and (4) substantial noncompliance with the reasonable requirements of the permanency plans. Concerning Mother only, DCS also alleged the additional statutory grounds of (1) abandonment by failure to provide a suitable home and (2) persistence of the conditions leading to removal of the Child. Following a bench trial, the trial court granted the petition upon its determination by clear and convincing evidence that DCS had proven as to both parents the statutory grounds of abandonment by an incarcerated parent and substantial noncompliance with the reasonable requirements of the permanency plan. With regard to Mother only, the trial court determined that DCS had also proven by clear and convincing evidence the ground of persistence of the conditions leading to the Child's removal. The trial court further determined by clear and convincing evidence that termination of Mother's and Father's parental rights was in the Child's best interest. Mother and Father have appealed. Discerning no reversible error, we affirm.

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

          Cara C. Welsh, Chattanooga, Tennessee, for the appellant, Lola R.

          Rachel M. Wright, Hixson, Tennessee, for the appellant, Authur D.

          Herbert H. Slatery, III, Attorney General and Reporter, and Michael C. Polovich, Assistant Attorney General, for the appellee, State of Tennessee Department of Children's Services.

          Berry Foster, Chattanooga, Tennessee, Guardian Ad Litem.

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Charles D. Susano, Jr., J., joined.

          OPINION

          THOMAS R. FRIERSON, II, JUDGE

         I. Factual and Procedural Background

         The Child was born in 2007 to Mother and Father, both of whom were seventeen years of age at the time of the Child's birth.[1] Both parents subsequently dropped out of high school enrollment. Although the parents resided together at the time of the Child's birth, they separated after approximately one year. Thereafter, the Child resided primarily with Mother while Father enjoyed significant visitation.

         DCS filed a petition for temporary legal custody in the trial court on June 17, 2013, alleging that the Child was dependent and neglected while in Mother's custody. In this petition, DCS averred, inter alia, that on July 13, 2013, the Child, who was five years of age at that time, was discovered with Mother in the home of Mother's sister, with such home being described as "deplorable and filthy." Mother was drug screened and found to be under the influence of several illicit substances. Mother had previously been the subject of a DCS referral when she was discovered in a "filthy" motel room with the Child's younger sibling and had no diapers, clothing, or food for the child. The Child and his sibling were placed in the temporary custody of DCS.[2] The trial court subsequently entered an adjudicatory hearing order on November 26, 2013, determining the Child to be dependent and neglected. This order was based in part on the parents' stipulation concerning the facts alleged in the petition. The Child was placed in foster care, where he remained through the date of the termination trial.

         On November 25, 2015, DCS filed a petition to terminate the parental rights of both Mother and Father in the trial court. An amended petition to terminate was subsequently filed on May 6, 2016. DCS alleged as a basis for termination against both parents the statutory grounds of (1) abandonment by willful failure to visit, (2) abandonment by willful failure to support, (3) abandonment by an incarcerated parent, and (4) substantial noncompliance with the reasonable requirements of the permanency plans. Against Mother only, DCS also alleged the statutory grounds of (1) abandonment by failure to provide a suitable home and (2) persistence of the conditions leading to removal of the Child.

         The trial court conducted a bench trial over the course of four days on June 13, 2016; July 14, 2016; September 26, 2016; and October 10, 2016. Several witnesses testified during trial, including the parents; Emetria Arnold, the DCS family service worker; Brian Stoddard, the Child's former therapist; Vivian Squires, the resource coordinator for Omni Visions; and William Hobbs, the DCS mental health practitioner for the region where the Child was located. Both parents admitted during their testimony to incurring criminal charges and repeated incarcerations since the Child's birth. Ms. Arnold testified that following the Child's removal into DCS custody, Mother had been incarcerated during the time periods spanning July 15 to July 16, 2013; July 22 to July 29, 2014; April 10 to April 16, 2015; July 8 to August 14, 2015; and April 4 to June 2, 2016. Father had likewise been incarcerated from April 19 to April 22, 2013; September 17 to October 3, 2013; October 18 to November 27, 2013; January 17 to February 4, 2014; March 12 to March 27, 2014; June 18 to June 27, 2014; January 28 to February 13, 2015; and February 9 through the first day of trial (June 13) in 2016. Ms. Arnold further testified regarding an ongoing issue with drug dependency concerning both parents. Mother had entered treatment for her substance abuse shortly before the termination trial began; Father had never undergone treatment for his substance abuse.

         Ms. Arnold explained that despite her efforts to assist the parents, neither Mother nor Father had substantially complied with the reasonable responsibilities of their permanency plans. The parents affirmed at trial that they were familiar with the responsibilities of their plans. Despite their knowledge of the responsibilities, however, Ms. Arnold reported that the parents had, prior to the filing of the termination petition, failed to maintain safe and stable housing, maintain stable employment, rectify their substance abuse issues, avoid further criminal behavior, or visit or support the Child. The Child, who had been diagnosed with Obsessive-Compulsive Disorder, Post-Traumatic Stress Disorder, Attention Deficit Hyperactivity Disorder, and attachment disorder, had been placed on multiple medications to alleviate his behavioral issues. Due to such behavioral issues, the Child had recently been placed into a fifth foster home by the conclusion of the termination trial. While Ms. Arnold opined that the Child needed stability and permanency, she articulated that the parents were incapable of providing for his needs. Ms. Arnold and Ms. Squires both related that the parents had demonstrated an ongoing lack of communication with DCS regarding their whereabouts, which, in addition to the parents' ongoing legal issues, had hindered DCS's efforts to assist the parents.

         Upon conclusion of the trial on the merits, the trial court determined that DCS had proven the ground of abandonment by an incarcerated parent with regard to both parents by clear and convincing evidence. See Tenn. Code Ann. §§ 36-1-102(1)(A)(iv), 36-1-113(g)(1). The court found that both parents were incarcerated during all or part of the four months prior to the filing of DCS's amended petition to terminate. The court further found that both parents engaged in conduct prior to their respective periods of incarceration through which they exhibited wanton disregard for the welfare of the Child by failing to remain drug free and by continuing to commit criminal acts. The court also determined that since the Child's birth, Mother had incurred criminal convictions for criminal impersonation, disorderly conduct, vandalism, false reports, and possession of drug paraphernalia. In April 2016, Mother was incarcerated for a violation of probation. The trial court found that Father had also been in and out of jail during the time the Child was in DCS custody, having been sentenced to six years for theft. The court noted that both parents had failed drug screens prior to their respective incarcerations.

         The trial court also determined that DCS had proven by clear and convincing evidence the ground of substantial noncompliance with permanency plans with regard to both parents. See Tenn. Code Ann. §§ 36-1-113(g)(2), 37-2-403(a)(2). The court determined that although the responsibilities set forth in the plans were aimed at remedying the conditions necessitating foster care, and despite efforts by DCS to assist the parents, both parents failed to comply with those reasonable responsibilities. The court noted that prior to the termination petition's filing, Mother had failed to complete alcohol and drug treatment, pass random drug screens, avoid incarceration, maintain contact with DCS, maintain stable housing or employment, receive proper mental health treatment, or regularly visit the Child. The court also noted that DCS made reasonable efforts to assist Mother by attempting to maintain contact with her, arranging for her alcohol and drug treatment, arranging for her mental health assessment and treatment, providing a bus pass and other means of transportation, sending applications to the housing authority, applying for food stamps on Mother's behalf, and providing in-home services on two different occasions. Notwithstanding these efforts, Mother failed to appear for her scheduled appointments and failed to complete the responsibilities required by her permanency plans prior to the filing of the termination petition.[3]

         Similarly, the trial court found that Father had failed to comply with the reasonable responsibilities set forth in his permanency plans despite efforts to assist by DCS. Based on the evidence, the court determined that Father failed to complete drug and alcohol treatment, pass random drug screens, avoid incarceration, maintain contact with DCS, maintain stable housing and employment, or regularly visit with the Child. The court also found that DCS made reasonable efforts to assist Father by attempting to maintain contact with him, arranging for his alcohol and drug assessment, and arranging for his mental health assessment.

         In addition, the trial court concluded that DCS had proven the ground of persistence of the conditions leading to the Child's removal by clear and convincing evidence relative to Mother. See Tenn. Code Ann. § 36-1-113(g)(3). In support, the court noted that the Child had been removed from Mother's custody and home for a period of more than six months and that the conditions leading to removal still persisted. The court found little likelihood that the conditions would be remedied at an early date so that the Child could be returned to Mother's custody. The court reiterated that prior to the termination petition, Mother failed to complete alcohol and drug treatment; pass random drug screens; prevent incarceration; maintain contact with DCS; or maintain stable housing, stable employment, or regular visitation with the Child. The court noted that Mother had made no progress toward the goals of her permanency plans until 2016.

         The trial court also determined by clear and convincing evidence that termination of Mother's and Father's parental rights was in the Child's best interest. Finding that the Child had lingered in foster care since June 2013, the court observed that the Child was eight years old, adoptable, and in need of permanence. The court also found that the parents had failed to make a lasting adjustment of their circumstances so as to make it safe for the Child to be placed in their care. As the court explained: "[The Child] has had enough of the unknown. This unknown hope that his parents are going to somehow do what they need to do needs to be out of the picture, so that he can focus on himself and the services can be clearer for him." The court further determined that the parents had not maintained regular visitation with the Child, such that there was no meaningful parent-child relationship, only "fondness" and "some emotional connection." According to the court, the parents' respective homes were not suitable for the Child due to their criminal activity and drug use, and the parents were unable to care for the Child in a safe and stable manner.

         Based on these findings and conclusions, the trial court terminated the parental rights of both parents. Mother and Father each timely appealed.

         II. Issues Presented

         Mother presents the following issues for our review, which we have restated slightly:

1. Whether the trial court erred in determining by clear and convincing evidence that Mother engaged in conduct prior to her incarceration exhibiting a wanton disregard for the welfare of the Child.
2. Whether the trial court erred by determining that clear and convincing evidence supported the ground of substantial noncompliance with the reasonable requirements of the permanency plans regarding Mother.
3. Whether the trial court erred by determining that clear and convincing evidence supported the ground of persistence of the conditions leading to removal of the Child regarding Mother.
4. Whether the trial court erred in determining by clear and convincing evidence that termination of Mother's parental rights was in the Child's best interest.
5. Whether the trial court erred by failing to address the likelihood of the Child's adoption in the best interest analysis.
6. Whether the trial court erred by failing to address the loss of sibling relationships in the best interest analysis.

         Father presents the following additional issues, which we have also restated slightly:

7. Whether the trial court erred in determining by clear and convincing evidence that Father engaged in conduct prior to his incarceration exhibiting a wanton disregard for the welfare of the Child.
8. Whether the trial court erred by determining that clear and convincing evidence supported the ground of substantial noncompliance with permanency plans regarding Father.
9. Whether the trial court erred in determining by clear and convincing evidence that termination of Father's parental rights was ...

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