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In re Zayne P.

Court of Appeals of Tennessee, Jackson

April 30, 2018

IN RE ZAYNE P.[1]

          Session February 21, 2018

          Appeal from the Chancery Court for Carroll County No. 2015-AA-190 Carma Dennis McGee, Chancellor

         This appeal arises from a Petition to Terminate Parental Rights filed by the foster parents. The Department of Children's Services removed the child from the mother and father's custody and placed the child in the custody of the foster parents because, shortly after the child was born, the child tested positive for drugs. On the petition of DCS, the juvenile court adjudicated the child dependent and neglected based on the finding that the parents committed severe child abuse. Thereafter, DCS filed a Petition to Terminate Parental Rights based, in part, on the records provided by the case worker. Subsequently, DCS determined that the case worker had falsely reported that the parents were noncompliant with the permanency plan. Following an inquiry that revealed the parents were in substantial compliance with the permanency plan and that all drug tests were negative, DCS dismissed its petition with court approval. Thereafter, the foster parents commenced a new and independent action to terminate mother and father's parental rights; the petition also named DCS as a respondent. The foster parents subsequently filed a motion to compel joinder of DCS as a co-petitioner on the ground that Tenn. Code Ann. § 36-1-113(h)(1)(D) mandated that DCS file a petition to terminate parental rights if a juvenile court has made a finding that the parents committed severe child abuse. DCS opposed the motion on the ground that it had the discretion not to pursue termination of parental rights if a compelling reason existed. The trial court denied the motion, and the case proceeded to trial on the foster parents' petition. Following trial, the court found that the foster parents proved severe child abuse by clear and convincing evidence; however, the court determined that termination of the parents' rights was not in the child's best interests and dismissed the petition. This appeal followed. Having determined that the foster parents failed to prove by clear and convincing evidence that termination of the parents' rights was in the child's best interests, we affirm.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

          Laura A. Keeton, Huntingdon, Tennessee, for the appellants, Charles A. and Misha A.

          Chad A. Cox, Paris, Tennessee, for the appellee, Vicky B.

          Robert W. Hawley, Paris, Tennessee, for the appellee, Steven P.

          Jasmine McMackins, Paris, Tennessee, Guardian Ad Litem.

          Herbert H. Slatery, III, Attorney General and Reporter; W. Derek Green, Assistant Attorney General, for the Tennessee Department of Children's Services.

          Frank G. Clement Jr., P.J., M.S., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S., and Brandon O. Gibson, J., joined.

          OPINION

          FRANK G. CLEMENT JR., P.J., M.S.

         Zayne P. was born seven weeks premature in May 2014, to Vicki B. ("Mother") and Steven P. ("Father") (collectively, "Parents"). Zayne tested positive for opiates and methamphetamines at birth, and on May 30, the Tennessee Department of Children's Services ("DCS") gained temporary custody with physical custody given to foster parents, Charles A. ("Foster Father") and Misha A. ("Foster Mother") who are the petitioners in this proceeding. A permanency plan was developed and signed by Parents on June 19, 2014, and subsequently ratified by the court; it was revised and signed by Parents on October 16 and ratified by the court on November 19. In an order entered on December 10, 2014, the Henry County Juvenile Court found that Parents had committed severe child abuse by exposing Zayne prenatally to drugs. Zayne was also adjudicated dependent and neglected and has remained with the foster parents.

         It was noted in the October permanency plan that Mother and Father each had a long history of substance abuse. Therefore, the plan required Parents to submit to random drug screens, attend alcohol and drug counseling at Carey Counseling, and to continue counseling and Suboxone treatment[2] at Behavioral Health Group (BHG). The desired outcome was that Parents would maintain their sobriety long-term. Parents were to comply with BHG's protocol, which included decreasing their Suboxone use until they were substance free.

         It was also noted in the permanency plan that Mother and Father's home was an environmental concern with regard to animals, fleas, and lack of cleanliness. The plan required parents to provide a clean environment with working utilities and to submit to a parenting assessment and counseling services to assist Parents with parenting skills. As of October 2014, Parents received in-home services from Youth Villages to address the foregoing issues.

         Because Zayne was born premature and tested positive for several drugs, the permanency plan addressed Zayne's medical needs. It required that the Tennessee Early Intervention System ("TEIS") evaluate Zayne for developmental delay. It also mandated that Parents and the foster parents cooperate with Zayne's medical providers and follow through with TEIS and all other medical appointments.

         The goal of the June permanency plan was "return to parent/exit custody with kin." In October, the goal of the permanency plan was amended so that Zayne would "retain permanency through adoption." Accordingly, DCS filed a Petition to Terminate Parental Rights on January 12, 2015. Thereafter, the permanency plan was updated in January 2015 and then, again, in April 2015 with the same desired outcomes and goals.

         In the interim, a DCS supervisor, Bret Brooks, conducted an internal review of Zayne's DCS file and determined that a DCS case worker had falsely reported that Parents were noncompliant with the permanency plan.[3] Conversely and significantly, Ms. Brooks determined that Mother and Father had made substantial progress toward meeting their goals on the permanency plan; specifically, that all drug tests had been negative, and Parents were now providing a safe environment. Based on these findings, Ms. Brooks concluded that DCS did not have a basis upon which to pursue the petition to terminate Parents' rights.

         Shortly thereafter, on June 4, 2015, DCS dismissed its Petition to Terminate Parental Rights, and on June 30, 2015, DCS added "Return to Parent" as an alternative goal in the permanency plan. In July 2015, the juvenile court permitted Parents to have significant visitation with Zayne, starting at six hours per week and progressing to unsupervised overnight visits. Shortly following, in September, the court found that Parents were compliant with the permanency plan and that their visits with Zayne were successful. As a consequence, the court approved unsupervised overnight visitation every weekend beginning in October 2015. The weekend visits have continued ever since.

         Following the September 2015 hearing, the foster parents (collectively, "Petitioners"), filed a Petition to Terminate Parental Rights and for Adoption on the grounds of willful failure to provide support, Tenn. Code Ann. § 36-1-102; substantial noncompliance with the permanency plan, Tenn. Code Ann. §§ 36-1-113(g)(2) and 37-2-403(a)(2); severe child abuse, Tenn. Code Ann. § 36-1-113(g)(4); and persistence of conditions, Tenn. Code Ann. § 36-1-113(g)(3). One week later, they filed an amended Petition, adding DCS as a respondent.

         The Petition also asked for a temporary restraining order suspending Zayne's visits with Parents. On September 29, the trial court granted the restraining order pending a hearing on October 8, and after the hearing, the trial court dissolved the temporary restraining order, finding no evidence that Parents' visitation with Zayne would cause him irreparable harm.

         Petitioners subsequently filed a Motion to Compel Joinder of DCS to require DCS to assist Petitioners in the prosecution of the petition to terminate Parents' rights. The principal basis for the motion was that Tenn. Code Ann. § 36-1-113(h)(1) mandated that DCS file a petition to terminate parental rights if a juvenile court has made a finding that the parents committed severe child abuse. Because the Henry County Juvenile Court found severe child abuse in Zayne's case, Petitioners argued that the court should compel DCS to join Petitioners' Petition to Terminate Parental Rights.

         DCS opposed the motion on the ground that it had the discretion not to pursue termination of parental rights if a compelling reason existed and insisted that Parents' substantial compliance with the permanency plan was a compelling ground. The trial court denied the motion, and the case proceeded to trial on the foster parents' petition.

         Shortly following Petitioners' motion to compel joinder of DCS, Father filed a Tenn. R. Civ. P. 11 motion against Petitioners and their attorney, alleging that Petitioners "misled" the court to obtain a temporary restraining order and that the allegations set forth in the Petition were not supported by the evidence. Father argued that the filing of the Petition was "intended to harass, cause unnecessary delay, and/or needlessly increase the cost of litigation" and asked the court to award attorney's fees as a sanction. The trial court reserved judgment on Father's motion pending trial.

         The petition to terminate Mother's and Father's parental rights was tried over five days, [4] during which the court heard testimony from Dr. Fred Steinberg, a psychologist who evaluated Parents on behalf of Petitioners; Debbie Jelks, Zayne's physical therapist; Heather France, Parents' drug counselor at BHG; Jamie Estrada, DCS case manager; Velvet Arnold, friend of Petitioners; Bret Brooks, DCS supervisor; Abbey Buffington, Parents' counselor at Carey Counseling Center; Jessalyn Medlock, Parents' family intervention specialist at Youth Villages; Mother, Father, Foster Mother, and Foster Father.

         At the conclusion of Petitioners' case in chief, Father moved for involuntary dismissal under Tenn. R. Civ. P. 41.02 based on Petitioners' failure to prove grounds for termination and best interest by clear and convincing evidence. The court granted Fathers' motion as to willful failure to provide support, Tenn. Code Ann. § 36-1-113(g); substantial non-compliance with permanency plan, Tenn. Code Ann. § 36-1-113(g)(2); and abandonment, Tenn. Code Ann. § 36-1-102(1)(A)(iv).[5] The trial court denied the motion as to severe child abuse, Tenn. Code Ann. § 36-1-113(g)(4); persistence of conditions, Tenn. Code Ann. § 36-1-113(g)(3); and best interest, Tenn. Code Ann. § 36-1-113(i), and the trial moved forward on the remaining issues.

         At the conclusion of the trial, the court determined that Petitioners had not proven persistence of conditions:

The child was removed due to the parents' use of illegal drugs and the child testing positive for drugs at birth. There is no proof that the parents continue to abuse illegal drugs. They are both currently on Suboxone, for which they have prescriptions and receive regular monitoring. There is not proof that there are any other factors or conditions which prevent the child's safe return to [Parents]. All case workers called as witnesses testified that [Parents'] home was safe and appropriate and that there were no barriers or safety concerns in returning the child to [Parents'] care.

         The court determined that while Petitioners proved that Parents had committed severe child abuse by clear and convincing evidence, Petitioners did not prove that it would be in Zayne's best interest to terminate Parents' parental rights. Examining the best interest factors in Tenn. Code Ann. § 36-1-113(i), the court found that Parents maintained regular visitation with Zayne, that Parents provided financial support to him, that Parents established a meaningful relationship with Zayne, that both parents had been compliant with drug treatment, and that they provided a safe and appropriate environment. The court also denied Father's Tenn. R. Civ. P. 11 motion.

         Accordingly, the trial court dismissed the Petition, and Petitioners appealed.

         Issues

         Petitioners present three issues for our review:

I. Did the trial court err in denying the Petitioners' motion to compel DCS to join in the Petition to Terminate Parental Rights pursuant to Tenn. Code Ann. § 36-1-113(h)(1)?
II. Did the trial court err in finding that Petitioners did not prove the statutory ground of Tenn. Code Ann. § 36-1-113(g)(3), persistence of conditions, by clear and convincing evidence?
III. Did the trial court err in finding that Petitioners did not show by clear and convincing evidence that termination was ...

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