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In re Kendall M.

Court of Appeals of Tennessee, Knoxville

May 29, 2018


          Assigned on Briefs February 2, 2018

          Appeal from the Juvenile Court for Hamilton County No. 276548 Robert D. Philyaw, Judge

         Kendall M. was born in January 2016; she tested positive for amphetamines at birth and was placed in the Neonatal Intensive Care Unit where she was diagnosed with Neonatal Abstinence Syndrome and suffered from withdrawal symptoms. Upon her release from the hospital, she was placed with foster parents, in whose care she has remained. A proceeding to have her declared dependent and neglected was initiated by the Department of Children's Services and permanency plans developed in May and October of 2016. In March of 2017 the Department filed a petition to terminate the parental rights of Kendall's Mother on the grounds of abandonment by an incarcerated parent and substantial noncompliance with the permanency plans; following a hearing, the court granted the petition and terminated Mother's rights on both grounds. Mother appeals the termination of her rights on the ground of substantial noncompliance with the permanency plans and the holding that termination of her rights was in the best interest of Kendall. Upon our review, we conclude that there is clear and convincing evidence to support the termination of her rights on both grounds, and the finding that termination of Mother's rights is in Kendall's best interest; accordingly, we affirm the judgment of the trial court.

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

          Greta Locklear, Chattanooga, Tennessee, for the appellant, Brittany M.

          Herbert H. Slatery, III, Attorney General and Reporter; Michael C. Polovich, Assistant Attorney General; for the appellee, Tennessee Department of Children's Services. Todd A. Davis, Chattanooga, Tennessee, Guardian ad litem.

          Richard H. Dinkins, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Kenny W. Armstrong, J., joined.



         I. Factual and Procedural History

         This appeal arises from a proceeding to terminate the parental rights of Brittany M. ("Mother"), mother of Kendall M., who was born in January 2016; the parental rights of Darrell P., the legal father of Kendall, and Matthew P., Kendall's putative father, were not included in the proceeding and are not at issue in this appeal.

         At the time Mother was admitted to the hospital to give birth, she tested positive for amphetamines and tetrahydrocannabinol ("THC"). Kendall tested positive for amphetamines at birth and was placed in the Neonatal Intensive Care Unit ("NICU") where she suffered from withdrawal symptoms and was diagnosed with Neonatal Abstinence Syndrome. While Kendall was in the hospital, Stephanie D. and Bryan D., friends of Kendall's maternal great-grandfather, ("Ms. and Mr. D.") filed a petition for temporary custody of her; the petition was granted and she was released from the hospital into their custody on January 24, 2016, where she has remained.[2]

         On April 21, 2016, the Department of Children's Services ("DCS") filed a Petition for Temporary Legal Custody and Ex Parte Order, requesting that the court find Kendall dependent and neglected and severely abused, and that the court enter an immediate protective custody order, placing her in temporary legal custody of DCS; the requested order was entered on April 23. DCS developed a permanency plan for Kendall on May 5, 2016, with a goal of return to parent.[3] Mother signed the plan and the Criteria and Procedures for Termination of Parental Rights on July 18, and the plan was ratified in an Adjudicatory Hearing Order entered November 17, in which the court declared Kendall to be dependent and neglected. A second permanency plan was developed on October 27, 2016, with a goal of return to parent/adoption, and ratified by order entered March 16, 2017; Mother refused to sign the October plan and accompanying Criteria and Procedures for Termination.

         A hearing on the dependency and neglect petition was held on November 1, 2016; the Adjudicatory Hearing Order entered on November 17 recites that Mother had notice of the hearing, failed to appear in person but was represented by counsel, and that counsel waived Mother's right to an adjudicatory hearing and stipulated that the following facts were true:

[Kendall] is dependent and neglected within the meaning of T.C.A. § 37-1-102(b)(12) because the subject child's urine tested positive at birth for amphetamines, and the child experienced withdrawal symptoms as a result of the drug exposure. In addition, the subject child continues to have medical needs as a result of the drug exposure.
Specifically, the subject child was born prematurely at 35 weeks gestation and weighed four (4) pounds at birth. As a result, the child was placed in the Neonatal Intensive Care Unit (NICU) at Erlanger Children's Hospital. Medical personnel at Erlanger reported that the subject child demonstrated signs of withdrawal. Specifically, the child appeared to be "jittery."
When the mother was admitted to the hospital, medical personnel reported that she was "acutely intoxicated." The subject child's mother tested positive for amphetamines and THC at the hospital. As a result of this investigation, CPS substantiated the mother for "drug exposed child."
The mother had reported to Erlanger medical staff that she was on Subutex and was in treatment at the Volunteer Treatment Center in Chattanooga. The mother also informed medical staff that she had recently separated from her husband, Darrell [P.]. According to medical staff, the mother admitted that she had recently relapsed back to using drugs due to the stress of the separation.
The mother had reported that the subject child's biological father may be the legal father, Darrell [P.]. However, she also reported that Matthew [P.] may be the child's biological father. The mother had stated that DNA testing would be needed to identify the biological father of the subject child. Both [Darrell P.] and [Matthew P.] were present at the hospital following the subject child's birth. However, only [Darrell P.] was allowed to visit with the child since he is the legal father.
The mother has two older children, Makayla [P.] and Kelsey [B.], who were already in DCS custody and placed in the home of a relative, Ava [C.] [hereinafter "Ms. C."]. The mother was substantiated by CPS for "abandonment" and "drug exposed child" as a result of investigations regarding these children. At the time of Kendall's removal, the mother still needed to demonstrate stability and complete her tasks on the permanency plan that was developed regarding her other children already in DCS custody. Specifically, the mother needs to fully complete alcohol and drug treatment, mental health counseling and/or treatment, and submit to random drug screens to prove sobriety.
On January 14, 2016, CPS Investigator Sharon Hines met with the mother and the child's maternal grandmother, Tina [M.] [hereinafter Ms. M."], at the DCS office. The mother was living with Ms. M. at that time. When CPS asked the mother about alternative placement options for the subject child, the mother suggested the child's maternal great grandmother. However, CPS informed the mother that this placement would not be appropriate due to the presence of cigarette smoke in the home and because the child has ongoing medical problems, including lung development complications. The mother also suggested that [Darrell P.] and [Matthew P.] undergo DNA testing to determine which one is the biological father of the child. ***
[Ms. C] is caring for the mother's other two children who are in DCS custody, and she was unable to additionally care for the subject child. The subject child's maternal great grandfather is Wayne [M.] [hereinafter "Mr. M."]. [Mr. M] previously served as a temporary alternative relative placement for the mother's two older children. [Mr. M.] said he was unable to serve as a long term placement option for the subject child. However, [Mr. M.'s] girlfriend, Denise, has a daughter, [Ms. D.], who is a nurse and was willing to care for the subject child.
On January 19, 2016, [Mr. and Mrs. D.] filed a petition for temporary custody of the subject child and were granted custody by this Honorable Court. The Department conducted background checks on the petitioners. In addition, a home study was conducted and their home was deemed appropriate for the subject child. The subject child has been with [Mr. and Mrs. D.] since her discharge from the hospital on January 24, 2016.
The mother continued to have untreated alcohol and drug issues and mental health issues. Therefore, the Department filed its Petition for Temporary Custody of the subject child on April 21, 2016, so that the Department could provide assistance and resources to the parents, such as supervised visitation to be provided by DCS and facilitation of DNA testing. [Mr. and Mrs. D.] were willing to attend PATH classes to become foster parents so that the child could continue to remain in their home.

On the basis of the foregoing, the court adjudicated Kendall to be dependent and neglected; the court ordered that Kendall be removed from Mother's home pursuant to Tennessee Code Annotated section 37-1-114(2) and that she remain in foster care, with DCS having authority to consent to medical and other necessary care and to allow supervised visitation by Mother. A permanency hearing was set for March 28, 2017.

         The permanency hearing was held as scheduled, and on April 28, the court entered an order stating the following with respect to the parties' compliance with and progress under the then-current permanency plan:

         8. Compliance with the current permanency plan (aka case plan) is as follows:

a. DCS is in substantial compliance;
b. the mother, [Brittany M.], is not in substantial compliance in that she has not completed alcohol and drug treatment, she has not been receiving mental health treatment, she has not established suitable housing, she has incurred additional criminal charges, and she has missed scheduled visits with the child. Ms. Ash testified that visits are every Monday at the DCS office, and the mother has missed about two visits every month. In addition, the mother pleaded guilty to a charge of "Domestic Assault" in December 2016, in which her grandmother was the alleged victim. Ms. Ash testified that the mother has not yet provided documentation requested by the Department, such has proof of a lease, her probation officer's name, and proof that she recently went to CADAS and Joe Johnson for assessments. In addition, during the pendency of this case, the mother has been asked to leave the CADAS program twice. She has refused to submit to drug screens by the Department in the past. On March 21, 2017, the mother was drug screened at a visit and tested positive for morphine, amphetamines, and hydromorphone. The mother has provided a photograph of some medication bottles prescribed to her, which include the medications: aripiprazole and lamotrigine. The mother has also provided documentation of a few pay stubs from a job she has recently obtained.
9. Progress toward resolving the reasons the child is in foster care has been made but the following barriers still exist:
The parents have not completed the tasks on their family permanency plans. The Court noted that the parents have had ample time to complete the tasks on their permanency plans since they have older children who were also in DCS custody previously before exiting custody with a relative. The Court is of the opinion that if the parents don't take care of their drug dependency issues through treatment, even if the mother can maintain some sobriety through her probation, the underlying issues won't get resolved until both parents have completed alcohol and drug treatment.

The court ordered that Kendall remain in foster care. The order also noted that DCS had filed a petition to terminate Mother's parental rights on March 20, and that a first hearing on that petition was set for May 3.

         Termination of Mother's rights was sought on the grounds of abandonment by incarcerated parent and substantial noncompliance with permanency plans. The final hearing on the petition took place on June 22, and an order terminating Mother's rights on the grounds asserted was entered on August 3.[4] Mother appeals, stating the following issues:

I. Whether the trial court's finding of substantial non-compliance is supported by clear ...

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