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In re Isaiah B.

Court of Appeals of Tennessee, Knoxville

May 8, 2018

IN RE ISAIAH B.

          Assigned on Briefs Date: April 3, 2018

          Appeal from the Juvenile Court for Carter County No. J34323T Klyne Lauderback, Jr., Judge

         Mother appeals the termination of her parental rights on grounds of (1) abandonment by failure to establish a suitable home; (2) persistence of conditions; (3) substantial noncompliance with permanency plans; and (4) failure to manifest a willingness and ability to assume custody of the child. We reverse the trial court's ruling with regard to substantial noncompliance with permanency plans, but affirm the remaining grounds, as well as the trial court's determination that termination is in the child's best interest. The termination of Mother's parental rights is therefore affirmed.

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

          Michelle Caggiano, Johnson City, Tennessee, for the appellant, Angela A.B.

          Herbert H. Slatery, III, Attorney General and Reporter; Alexander S. Rieger, Deputy Attorney General, for the appellee, State of Tennessee, Department of Children's Services.

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

          OPINION

          J. STEVEN STAFFORD, JUDGE

         Background

         On November 5, 2015, the child at issue, Isaiah B. ("Isaiah" or "the child"), was removed from the custody of his parents, Angela A.B. ("Mother") and Phillip B. ("Father") by the Tennessee Department of Children's Services ("DCS"). This appeal concerns only Mother. The family had previously been in contact with DCS following their move to Tennessee from another state due to concerns of bruising on Isaiah resulting in multiple trips to the emergency room, domestic violence, and drug use in the home. On the day Isaiah was removed, Mother went into premature labor with another child.[1] Due to the circumstances, Mother was forced to allow Isaiah to be supervised by paternal grandfather and Father; it appears that Mother also called DCS and maternal grandmother to retrieve Isaiah. Although maternal grandmother appears to have retrieved Isaiah, DCS nevertheless arrived at the home of paternal grandfather to inspect its condition. According to the DCS worker who investigated, the home was littered with beer cans and it was clear that paternal grandfather had been drinking heavily. DCS therefore retrieved Isaiah from maternal grandmother and subsequently placed the child in foster care.[2] Mother remained in the hospital for several days following the birth. Eventually, Isaiah was adjudicated dependent and neglected on December 30, 2015, after the juvenile court found that Mother used marijuana while pregnant, and Father stipulated that the parties were violating an order of protection by living together. At the time of the removal, Isaiah was nine months old.

         Following the removal of the child, DCS formulated three permanency plans requiring both Mother and Father to complete several action steps. All three plans were ratified by the juvenile court. The first plan, created on November 23, 2015, required Mother to: (1) maintain employment; (2) complete a parenting assessment and follow recommendations; (3) complete an alcohol and drug assessment and follow recommendations; (4) maintain safe and stable housing and not allow anyone to reside with her unless they were on the lease; and (5) complete a mental health intake and follow recommendations. Father was required to complete similar tasks. A second permanency plan was created on January 11, 2016, with similar requirements. On July 14, 2016, a third permanency plan was created, which required Mother to: (1) provide DCS with employment verification; (2) complete a dual diagnosis program recommended by Frontier Health; (3) maintain safe and stable housing and ensure that no one else resides in the home without a DCS background check; (4) complete a comprehensive psychological assessment and follow recommendations; and (5) if Mother and Father reside together, each must demonstrate the ability to be drug and domestic violence free. As detailed infra, Mother completed some of the plan requirements; Father largely failed to complete any of the plan requirements.

         Both parents were drug tested throughout the pendency of these proceedings. Mother failed several drug tests initially, typically for marijuana. Mother claimed that her drug use at the time of Isaiah's removal was recommended by a physician due to her difficult pregnancy and that thereafter she used marijuana due to grief. Mother began to consistently pass all drug tests on June 23, 2016. Father, however, generally failed every drug test given to him, often testing positive for marijuana and "benzoes."[3] Father last appeared for a drug screening in June 2016, after which he refused to maintain contact with DCS to take drug screenings. Father became involved with DCS again in February 2017, at which time he admitted he was using methamphetamine. On February 17, 2017, Father failed a drug test for marijuana only. Father again admitted to using methamphetamine in April 2017.

         Mother was also provided supervised visitation with the child once a week; Mother attended every visitation, although she was often late. There was no dispute that Mother's interactions with the child during the visitations were appropriate and that Mother and the child had a bond.

         Mother completed every assessment required of her, including a parenting assessment, an alcohol and drug assessment, and a psychological assessment. It did appear, however, that Mother was dishonest in one assessment when she informed a provider that she had passed all drug screenings; at the time, Mother had failed all drug screenings. There was also some dispute as to whether Mother had completed all of the recommendations from the assessments. For example, when one assessment recommended that Mother enter intensive outpatient drug and alcohol treatment, Mother obtained another assessment from a different provider that recommended a less intensive treatment. Mother's assessments also recommended twice monthly counseling; prior to the filing of the termination petition, Mother attended counseling only sporadically. Following the filing of the termination petition, Mother began attending more consistently, after her counselor recommended that the visits decrease to once per month to accommodate Mother's work schedule. It was undisputed that Mother worked and paid appropriate child support for the child.

         On December 5, 2016, DCS filed a petition to terminate Mother's and Father's parental rights. With regard to Mother, the petition alleged four grounds: (1) abandonment by failure to establish a suitable home; (2) persistence of conditions; (3) substantial noncompliance with permanency plans; and (4) failure to manifest a willingness and ability to assume custody of the child.[4] A trial was held on July 7, 2017.[5]Mother was present. Father did not appear at trial and his attorney orally moved to withdraw from the representation; the trial court denied the attorney's motion. Several DCS employees testified as to the reasonable efforts made by DCS in the months following the removal of the children. These efforts included referring Mother to various assessments and services that DCS paid for, providing drug screenings, and supervising Mother's visitation. In contrast, the DCS worker involved at that time testified that Mother made no similar efforts during the four months following removal, as Mother consistently failed drug tests during this time frame, failed to follow the recommendations of the assessments, sporadically attended counseling, and was unable to maintain a safe and stable home.

         Indeed, much of the testimony at trial concerned Mother's effort to establish a safe and stable home. DCS workers testified that Mother was repeatedly informed that so long as she resided with Father, his noncompliance would prevent reunification with her child. At least one DCS worker involved with a later-born child, [6] however, told Mother to work together with Father to parent the child. Although Mother maintained at trial that she had long since removed Father from her life, even going so far as to obtain an order of protection against Father and make plans to initiate a divorce, evidence presented by DCS indicated that Mother and Father had not terminated their relationship. For example, Mother and Father married in February 2016 and had another child together in March 2017. At trial, both a DCS worker and the child's foster mother, Rhonda P. ("Foster Mother") testified that Father was seen dropping Mother off for visitations and/or kissing her as late as April 20, 2017, after Mother claimed that they were no longer together and an order of protection was in place. Although Mother claimed she was only relying on Father for transportation, the testimony indicated that Father was driving Mother's car in some instances. During some scheduled home visits to Mother's various residences, Father was also seen in Mother's home in pajamas.

         The domestic violence between the parties also did not stop following the removal, despite the fact that that Mother's counseling sessions included therapy to address the domestic violence issues.[7] According one DCS worker,

[O]n July the 22nd of 2016 [Mother] took an Order of Protection out against [Father] due to him being physically abusive. She reported that he had choked and slapped, pushed her and drawn weapons out on her. She said that he reported to her he was going to kill her multiple times; that he had also tried to choke her with her broken phone. She reported that he's using all kinds of drugs, and he always tries to kill her. Then on July 27th she dismissed the Order of Protection on the condition that [Father] would continue counseling and GED classes.

         Despite Mother's apparent faith in Father, Father was arrested in March 2017 for domestic violence against Mother. Mother claimed that she allowed Father in her home to assist her in caring for her new child, after having been told to work with Father by the DCS worker involved with her newborn child. Mother claimed, however, that Father did not reside in the home at that time. On the date of the incident, Mother called the police when Father became violent because he could not find his belt. Following her initial call, Mother called the police again to stop their arrival. Both Mother and the newborn child were in the home during Father's outburst; that child was later removed and placed in the foster home with the child at issue in this case.

         Following his arrest in March 2017, a DCS worker testified that Father admitted to DCS that the couple had been living together since February 2017 despite Mother's claims to the contrary.[8] When DCS attempted to persuade Mother to sign an immediate protection agreement to allow her to obtain custody of the child so long as Father stayed out of the home, Mother allegedly indicated that she would sign the agreement but would not abide by it. Mother did, however, obtain an order of protection against Father following this incident.

         A second domestic violence incident occurred at Mother's home on April 25, 2017. According to the police report on the incident, Father arrived at Mother's home uninvited and took some of his purported belongings, pushing and threatening Mother and damaging her cell phone in the process. While Father was in jail due to the domestic violence charges, Mother spoke to him by telephone several times. Mother also admitted that she placed the funds in Father's account for the telephone calls. Of the multiple telephone calls, two were played during trial. The phone calls, recorded on various dates in June 2017, included the following:

[Mother]: Okay. I mean I do have to do the divorce paper. [Father], that doesn't mean anything. It's just something to get our kids back. [Father]: It sure does.
[Mother]: No, it doesn't. [Father], we are about to lose [the child] forever. We are about to lose him forever. So anything that gives me a chance to keep him, all we've got to do is do this for a couple of months until after the termination hearing and everything, and then we can do whatever the hell we want with DCS (inaudible) one week every month.
[Mother]: And I'm telling you the Number 1 thing that was wrong with our relationship was because I kept catching you cheating. I didn't give a shit about the drugs and shit. I just kept catching you cheating, and you wouldn't do nothing to help get the kids back. I mean all you had to do was quit weed for a month, a couple months.
[Father]: It don't matter, [Mother]. Get a divorce so you can leave me alone.
[Mother]: I don't want to get a divorce until we -- but I'm doing it to get my kids, and then after [Father], listen. That's just paper. Regardless, we will always be married, and I will always love you. Always. And when you do get out, I want you to prove to me you're going to be good.
[Father]: I'm not good enough, [Mother].
[Mother]: Yes, you are. You will be getting out.
***
[Father]: Well, I won't be talking to you no more about it.
[Mother]: Yeah. Call me, please, please, please. Please call me.
[Father]: Okay.
[Mother]: Please, [Father].
[Father]: I love you. That's all I'm going to say to you.
[Mother]: I love you, too, Baby. I'm going to try to get you out. (Inaudible).
[Father]: All I want is this shit dropped. That's it.
[Mother]: The State won't let me do it. I tried. I tried.
[Father]: I love you. Okay. I love you. I just want to get my lawyer.
[Mother]: Get you a lawyer. That's what you need to do, but first, what plea they'll give you.
[Father]: I'll let you go. I love you. I don't know if I'll call you anymore or not.
[Mother]: Please call me.
[Father]: Call my dad and tell him call my dad and tell him to come down here and see...
[Mother]: I love you.
A second phone call contained the following exchanges:
[Father]: I might get charged with the Order of Protection, too, but you ain't?
[Mother]: I can't drop it, [Father].They will take the kids, and they will be gone forever.
[Father]: Whatever.
[Mother]: Please don't hang up on me because I just spend the last $10.00 out of my card.
[Father]: I don't care about the last . . . $10.00.
[Mother]: All right. I'll drop it. I'll drop it. I won't pay my rent. I'll drop the Protection Order. We'll lose the kids forever. It's fine. Okay. Because you know they could (inaudible).
* * *
[Mother]: You're going to really put me through that?
[Father]: Yeah. Nothing to what you put me through.
[Mother]: You wouldn't have been there if you didn't try to hurt me. You tried to kill me, [Father]. You tried to kill me. I mean do you not ever think that once -- at a certain point in time that you have to pay for your back?
* * *
[Mother]: I'm not keeping you in there. It's just if I -- I love my children, but that's fine. I forgot. You didn't give two craps about them anyways. So it doesn't bother you that that would mean that they would be gone forever? You promised me you were going to change. [Father]: I can't change like stuff that's gone wrong.
[Mother]: Yeah. But the way you're treating me right now. That should show me that you're going to change. I don't even know if a relationship between us is going to continue to work anyway because you're not going to change. [Father]: Whatever.
* * *
[Mother]: For [o]ne, DCS is wanting me to also get a divorce. [Father]: Whatever. I don't care. Just do whatever you want to do. [Mother]: No. Don't talk to me, [Father]. I do love you. I do, and I do want to be with you, and I want our relationship to work, but what you're doing is not helping anything.
* * *
[Mother]: Well, I mean, [Father], honestly, you (inaudible). . . . You broke my phone. You grabbed my wrist. You pushed me down. You threw my [stuff] across the living room.
* * *
[Father]: I just don't want to hear you lie.
[Mother]: I'm not lying to you. I'm not lying, [Father]. I'm trying to get you to realize what you did, and you still haven't figured it out. You were trying to kill me with a dog leash at Johnny's. Now tell me if that wasn't out of control. Me and you fist fought in Johnny's yard because you wouldn't stop talking to chicks. You were cheating on me, and every time I found out, you beat the royal hell out of me, and it wasn't me that was cheating. It was you. I don't get it. "I'm sorry" or "It's never going to happen again, " or "I understand what I did."
[Father]: Okay. I'm supposed to tell you that whenever I'm sitting here in a goddamn cell and I've got to Washington County for some more [charges]?
Huh? Yeah. That's a real good thank you.
[Mother]: No. It's called - whenever I found out that you were talking to other chicks instead of whipping the ...

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