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In re Tegan W.

Court of Appeals of Tennessee, Knoxville

April 9, 2018

IN RE TEGAN W.

          Assigned on Briefs March 1, 2018

          Appeal from the Juvenile Court for Sullivan County No. 17-JV-41814 Mark Toohey, Judge

         This is a termination of parental rights case wherein the trial court terminated a mother's parental rights based upon the sole statutory ground of abandonment by incarceration. The court further found that termination of the mother's parental rights was in the best interest of the child. The mother timely appealed. We affirm.

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

          Elizabeth A. Brady, Sevierville, Tennessee, for the appellant, Kayla W.

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

          ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which ANDY D. BENNETT and Thomas R. Frierson, II, JJ., joined.

          OPINION

          ARNOLD B. GOLDIN, JUDGE

         Background and Procedural History

         Appellant Kayla W.[1] ("Mother") gave birth to a son, Tegan W., in September 2011. Mother identified Marco B. ("Father") as the child's father; however, this appeal relates only to the termination of Mother's parental rights.

         In 2012, the Tennessee Department of Children's Services (the "Department") received a series of referrals alleging that Tegan W. was being neglected by Mother. As part of the initial investigation, Mother testified that she agreed to take a drug test for the Department, and she admitted that she tested positive for illegal narcotics. Mother attended a family team meeting with an employee of the Department on December 5, 2012; thereafter, Mother's whereabouts became unknown.

         On December 10, 2012, the Department filed a "Petition to Transfer Temporary Legal Custody and for Ex Parte Order" in the juvenile court of Sullivan County, Tennessee (the "trial court"). The Department sought to have Tegan W. adjudicated dependent and neglected, and it asked the trial court to award temporary legal custody of the child to his maternal grandmother, Cindy R. ("Grandmother"). According to the petition, the child was already living with Grandmother when the petition was filed.[2]Because Mother could not be located to be served, a final hearing was never held as a result of the Department's first petition. As discussed in greater detail below, Tegan W. resided with Grandmother until January 2016 when events taking place at Grandmother's home necessitated the child's removal.

         Mother has been arrested several times since Tegan W. was first removed from her legal custody in 2012. On January 23, 2014, Officer Brandon Metcalf arrested Mother on a federal warrant arising from her involvement in a conspiracy to counterfeit federal reserve notes in violation of 18 U.S.C. § 371. Mother testified that she was in possession of crack-cocaine when she was arrested by Officer Metcalf, and she was charged and pled guilty to simple possession on September 2, 2014. At trial Mother testified that on November 25, 2014, she pled guilty to the federal conspiracy charge and was sentenced to time-served and released on supervised probation. However, on December 10, 2014, she was arrested for violating the terms of her release by failing to participate in a drug treatment program and by failing to report to her probation officer. Following her arrest, Mother entered into an agreed order, whereby she agreed to serve four months in federal prison, followed by two years of supervised release. The terms of the new supervised release agreement also required Mother to reside in a halfway house for the first six months of her release. On May 31, 2015, Mother was released again, but her release was revoked on July 17, 2015 because she failed to report to the halfway house. Mother testified that instead of reporting to the halfway house, she went on the run as a fugitive to Florida until June 2016. Mother testified that she believed Tegan W. continued to reside with Grandmother while she was incarcerated and on the run as a fugitive, and she stated that she called the child regularly.

         On January 8, 2016, Father brought Tegan W. to the hospital because the child had sustained a life-threatening head injury. Father reported to police that Tegan W. was injured when Father accidently shot him in the head with a pellet gun.[3]

         While Tegan W. remained hospitalized on January 12, 2016, a grand jury indicted Father, Grandmother, and several other co-conspirators on a charge of conspiracy to distribute 280 grams or more of crack-cocaine. See 21 U.S.C. §§ 846, 841(b)(1)(A). On January 19, 2016 the Department filed a "Petition for Temporary Legal Custody" asking the court to "find [Tegan W.] dependent and neglected, and to award temporary legal custody of the child to [the Department]." On January 19, 2016, the trial court entered a protective custody order and Tegan W. was placed with his maternal uncle. However, the child was subsequently removed from his uncle's custody and placed with his current foster family in August 2016.

         Although Mother was still a fugitive, she testified that she learned of Tegan W.'s injuries from a relative in January 2016, and she resolved to return to Tennessee to see the child and to turn herself in. However, the trial court found that Mother did not in fact return to Tennessee until June 2016. An agreed order revoking Mother's supervised release was entered June 29, 2016, and Mother was required to serve a sentence of fifteen months imprisonment with no further supervision to follow.

         On February 15, 2017, the Department filed a petition to terminate Mother's parental rights.[4] Hearings were held on June 12, 2017 and July 17, 2017, and Mother and Elizabeth Kemp, a Department employee, testified.[5] On August 14, 2017, the trial court entered a final order terminating Mother's parental rights on the ground of abandonment by incarceration, with the parent having exhibited behavior prior to her incarceration displaying a wanton disregard for the welfare of the child.[6] The trial court also concluded that termination of Mother's parental rights was in Tegan W.'s best interest. Mother timely appealed.

         Issues Presented

         Mother presents the following issues for our review, which we restate as follows:

. Whether the trial court erred in concluding that the Department established the ground of "abandonment" by clear and convincing evidence.
. Whether the trial court erred in concluding that termination of Mother's parental rights is in the child's best interest.

         Standard of Review

         "A biological parent's right to the care and custody of his or her child is among the oldest of the judicially recognized liberty interests protected by the Due Process Clauses of the federal and state constitutions." In re Carrington H.,483 S.W.3d 507, 522 (Tenn. 2016). "Although this right is fundamental and superior to claims of other persons and the government, it is not absolute." In re J.C.D.,254 S.W.3d 432, 437 (Tenn. Ct. App. 2007) (citation omitted). "It continues without interruption only as long as a parent has not relinquished it, abandoned it, or engaged in conduct requiring its limitation or termination." In re M.J.B.,140 S.W.3d 643, 653 (Tenn. Ct. App. 2004) (citations omitted). In Tennessee, our statute provides that termination of a parent's rights to his or her child must be based upon: "(1) [a] finding by the court by clear and convincing evidence that the grounds for ...


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