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In re D.T.

Court of Appeals of Tennessee, Knoxville

June 18, 2018

In re D.T.

          Assigned on Briefs May 1, 2018

          Appeal from the Juvenile Court for Bradley County No. J-13-518 Daniel R. Swafford, Judge

         In this termination of parental rights case, the Department of Children's Services filed a petition to terminate the rights of R.T. with respect to his child, D.T.[1] At trial, DCS alleged a single ground for termination: persistence of conditions. The court found clear and convincing evidence. By the same quantum of proof, the court also found that termination is in the child's best interest. Father appeals. We affirm.

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

          Jonathan Wilson, Cleveland, Tennessee, for the appellant, R.T.

          Herbert H. Slatery, III, Attorney General and Reporter, and Erin Shackelford and Kathryn Baker, Assistant Attorneys General, Nashville, Tennessee, for the appellee, Tennessee Department of Children's Services.

          Charles D. Susano, Jr., J., delivered the opinion of the court, in which Richard H. Dinkins, and Kenny W. Armstrong, JJ., joined.

          OPINION

          CHARLES D. SUSANO, JR., JUDGE

         I.

         The mother of the child is a user of methamphetamine. On August 15, 2014, as a result of allegations regarding mother's drug use, DCS took custody of the child. The mother was provided with a no-contact order. Pursuant to the order, she was not to interact with the child until she completed her permanency plan and submitted a clean hair follicle drug screen. DCS made efforts to render father a suitable placement. After efforts from both father and DCS, on April 25, 2015, the child was placed in the father's care for a trial home placement period. On July 25, 2015, custody of the child was placed with father.

         Mother violated the no-contact order on two documented occasions. First, on September 27, 2015, mother came to a public park where father and the child's family were having a birthday party. Mother was asked to leave. Second, on October 21, 2015, father took mother to her probation officer appointment. Father allowed mother to take the child with her to the appointment. Mother tested positive for methamphetamine and amphetamine at the appointment.

         DCS received a referral alleging a drug-exposed child. The child was subsequently removed from father's care based upon allegations that he failed to protect the child from the mother, and that he failed to follow the court's no-contact order. The father alleges that he did not know the no-contact order was still in effect at the time of the probation appointment. He maintains that, even during the appointment, the child never left his sight. On November 24, 2015, the child was adjudicated dependent and neglected. The termination petition was filed on January 31, 2017.

         Discussion regarding the condition of father's home was heard by the trial court; however, DCS did not allege environmental neglect in its petition for termination. DCS admitted that the home's condition would not rise to a level warranting removal.

         Father completed all steps of his permanency plan. Father maintains that he will not allow the mother to be around the child. However, the veracity of this contention is questionable based upon his testimony at the termination hearing. Father testified that he believes his son has a right to see his mother. He testified that he helps mother with efforts to address her drug problem. He allows mother to enter his home to do laundry, take a shower, or stay the night when it's raining or cold outside. Father remains mother's means of transportation from time-to-time. DCS contacts father to reach mother, as he purportedly often knows her whereabouts. Mother indicated father as her transportation plan on her permanency plan and listed his address as her contact for DCS. At some point when the no-contact order was still in place, Mother sought permission to move in next door to father's residence. In essence, mother appears to still rely upon father and interact with him. Father has ultimately failed to demonstrate a definitive willingness to remove mother from his and the child's lives pending mother's ability to stop using drugs.

         II.

         Two issues are presented for ...


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