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In re Seth Mc.

Court of Appeals of Tennessee, Nashville

June 20, 2018

IN RE SETH Mc. ET AL.

          Assigned on Briefs May 1, 2018

          Appeal from the Juvenile Court for Dickson County No. 04-17-051-CC Michael Meise, Judge

         A mother of four children had her parental rights terminated based on the grounds of abandonment by failure to support, abandonment by failure to provide a suitable home, abandonment by wanton disregard, substantial noncompliance with permanency plans, severe child abuse, and persistence of conditions. Mother appealed the trial court's judgment. We affirm the termination of her rights as to all grounds other than abandonment by failure to support, abandonment by failure to provide a suitable home, and persistence of conditions.

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

          Taylor Reigh Luther, Dickson, Tennessee, for the appellant, Ashley R.

          Herbert H. Slatery, III, Attorney General and Reporter, and Jordan Keith Crews, Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Children's Services.

          Andy D. Bennett, J., delivered the opinion of the Court, in which J. Steven Stafford, P.J., W.S., and John W. McClarty, J., joined.

          OPINION

          ANDY D. BENNETT, JUDGE

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Ashley R. ("Mother") is the mother of Seth Mc. (born in 2007), Bentley Mc. (born in 2012), Kaitlynn R. (born in 2015), and Morgan R. (born in 2016).[1] On February 23, 2016, the Department of Children's Services ("DCS" or "the Department") received a referral alleging that the older three children were being exposed to methamphetamines. Mother may have been pregnant with Morgan at this point. DCS subsequently located the children at their maternal grandmother's house and arranged for two of them to undergo a hair follicle test. The children tested positive for methamphetamines and amphetamines.

         The Department filed a petition on March 29, 2016, to adjudicate the dependency and neglect of Seth, Bentley, and Kaitlynn, and to transfer temporary legal custody of the children to DCS. The trial court issued an ex parte protective custody order that same day, finding there was probable cause to believe the children were dependent and neglected, and DCS placed the children with Mother's aunt. The Department prepared a Family Permanency Plan on April 25, 2016. Mother signed the permanency plan and acknowledged that she had received a copy of the "Criteria and Procedure for Termination of Parental Rights."

         Mother attended in-patient treatment in April and May 2016 and successfully completed the program. One of Mother's discharge recommendations was to attend ninety sessions of Alcoholics Anonymous in ninety days. Mother testified that she attended only "a couple" of meetings.

         The trial court held a preliminary hearing on June 29, 2016, to consider DCS's dependency and neglect petition. Mother's attorney was present for the hearing, but Mother was not. The court wrote in its order that Mother "reportedly finished her rehab in early June, visited with the children one time and has not been heard from since." The DCS representative informed the court that Mother was not in contact with DCS and asked the court to disallow further visitation of the children by Mother at that time. The trial court ordered that the children would continue to be in the temporary care and custody of DCS and that Mother would have no contact with the children pending further orders of the court.

         The trial court held an adjudicatory/severe abuse hearing on October 19, 2016. Mother was present for this hearing and stipulated that the children were dependent and neglected on March 29 when they were removed from her home. The Department introduced evidence of severe abuse based on the children's exposure to methamphetamine, which DCS alleged Mother was producing in her home when the children were removed. The Department also indicated that "Mother has done well" since the earlier hearing and asked that Mother be permitted to have unsupervised visitation with the children at DCS's discretion. The court entered a final order that the children were dependent and neglected when they were removed from Mother's home and ordered that DCS would continue to have temporary care and custody of the children. The court took the issue of severe abuse under advisement and allowed Mother to begin unsupervised visitation at DCS's discretion. The court entered an order on December 29, 2016, finding the children were victims of severe abuse pursuant to Tenn. Code Ann. § 37-1-102(b)(22)(D).[2] The Department informed the court that Mother admitted that she had "relapsed, " and the court ordered that Mother have four hours of supervised visitation weekly with the children.

         Mother gave birth to Morgan in November 2016, and the baby tested positive for amphetamine and methamphetamine. Mother tested positive for amphetamine upon her admission to the hospital. The Department filed a petition on December 14, 2016, to adjudicate Morgan dependent and neglected and to transfer her temporary custody to DCS. DCS asserted that Morgan was a victim of severe child abuse due to her exposure to methamphetamines and amphetamines in utero. The trial court held an ex parte hearing and entered a protective custody order that same day. Morgan was placed with Mother's great aunt, alongside her three siblings. On December 16, two days after Morgan was placed into DCS's custody, Mother tested positive for methamphetamines based on an oral swab. On December 22, she tested positive for methamphetamines as a result of a hair follicle test.

         The trial court held a preliminary hearing on January 11, 2017, to consider DCS's dependency and neglect petition as to Morgan. Mother was notified of the hearing, but she did not attend. The trial court ordered that Morgan's temporary custody would remain with DCS and that Mother would be permitted supervised visitation with Morgan at DCS's discretion. Mother was ordered to pay child support of $50 per month for Morgan. The court found Morgan to be dependent and neglected and a victim of severe child abuse while in Mother's care and custody in June 2017.

         The Department prepared another permanency plan dated January 5, 2017, that covered all the children, including Morgan, and identified the goals as "return to parent" and "exit to kin." This second permanency plan was very similar to the earlier plan. By the time the second plan was prepared, Mother's great aunt's house had become a "fully approved home" for the children's placement. The trial court ratified this permanency plan on May 3, 2017, finding that the plan was reasonable, it included reasonable goals for the children, the responsibilities for Mother were reasonably related to achieving the goals of the plan, and the goals were in the children's best interest.

         The Department filed a petition to terminate Mother's parental rights to Seth, Bentley, Kaitlynn, and Morgan on April 27, 2017. The grounds for termination included abandonment by willful failure to support, abandonment by willful failure to provide a suitable home, abandonment by wanton disregard, substantial noncompliance with the permanency plan, severe child abuse, and persistent conditions.

         A trial took place on August 24, 2017, during which Mother, a DCS case worker, and Mother's great aunt (the foster mother) testified. The trial court filed an order terminating Mother's rights to the children on December 5, 2017. In its order, the court wrote that it had adjudicated Seth, Bentley, and Kaitlynn dependent and neglected in October 2016 based on Mother's stipulation that the children were dependent and neglected and that it subsequently found the children were victims of severe child abuse due to exposure to illegal drugs while in Mother's care and custody. The court then found that there was clear and convincing evidence to support the grounds DCS included in its petition and that terminating Mother's parental rights was in the children's best interest.

         Mother appealed the trial court's order, arguing that the trial court erred in finding (1) there was clear and convincing evidence to support the grounds for terminating her parental rights and (2) that terminating her rights was in the children's best interest.[3]

         II. ANALYSIS

         A. Standard of Review

         The Tennessee Supreme Court has described the appellate review of parental termination cases as follows:

An appellate court reviews a trial court's findings of fact in termination proceedings using the standard of review in Tenn. R. App. P. 13(d). Under Rule 13(d), appellate courts review factual findings de novo on the record and accord these findings a presumption of correctness unless the evidence preponderates otherwise. In light of the heightened burden of proof in termination proceedings, however, the reviewing court must make its own determination as to whether the facts, either as found by the trial court or as supported by a preponderance of the evidence, amount to clear and convincing evidence of the elements necessary to terminate parental rights. The trial court's ruling that the evidence sufficiently supports termination of parental rights is a conclusion of law, which appellate courts review de novo with no presumption of correctness. Additionally, all other questions of law in parental termination appeals, as in other appeals, are reviewed de novo with no presumption of correctness.

In re Carrington H., 483 S.W.3d 507, 523-24 (Tenn. 2016) (citations omitted); see also In re Gabriella D., 531 S.W.3d 662, 680 (Tenn. 2017).

         The termination of a parent's rights is one of the most serious decisions courts make. As the United States Supreme Court has said, "[f]ew consequences of judicial action are so grave as the severance of natural family ties." Santosky v. Kramer, 455 U.S. 745, 787 (1982). Terminating parental rights has the legal effect of reducing the parent to the role of a complete stranger, and of "severing forever all legal rights and obligations of the parent or guardian." Tenn. Code Ann. § 36-1-113(1)(1).

         A parent has a fundamental right, based in both the federal and state constitutions, to the care, custody, and control of his or her own child. Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174-75 (Tenn. 1996) (citing Nale v. Robertson, 871 S.W.2d 674, 678 (Tenn. 1994)); In re Adoption of Female Child, 896 S.W.2d 546, 547-48 (Tenn. 1995) (citing Hawk v. Hawk, 855 S.W.2d 573, 577 (Tenn. 1993)). This right "is among the oldest of the judicially recognized fundamental liberty interests protected by the Due Process Clauses of the federal and state constitutions." In re Carrington H., 483 S.W.3d at 521 (citing U.S. Const. amend. XIV, § 1; Tenn. Const. art. 1, § 8). While this right is fundamental, it is not absolute. Id. at 522. The State may interfere with parental rights only in certain circumstances. Id.; In re Angela E., 303 S.W.3d at 250. Our legislature has listed the grounds upon which termination proceedings may be brought. See Tenn. Code Ann. § 36-1-113(g). Termination proceedings are statutory, In re Angela E., 303 S.W.3d at 250; Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004), and a parent's rights may be terminated only where a statutory basis exists, Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In the Matter of M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998).

         To terminate parental rights, a court must determine by clear and convincing evidence the existence of at least one of the statutory grounds for termination and that termination is in the child's best interest. Tenn. Code Ann. § 36-1-113(c); In re Kaliyah S., 455 S.W.3d 533, 552 (Tenn. 2015); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). "Clear and convincing evidence enables the fact-finder to form a firm belief or conviction regarding the truth of the facts, and eliminates any serious or substantial doubt about the correctness of these factual findings." In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010) (citations omitted). "Evidence satisfying the clear and convincing evidence standard establishes that the truth of the facts asserted is highly probable." In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005).

         Once a ground for termination is established by clear and convincing evidence, the trial court or the reviewing court conducts a best interests analysis. In re Angela E., 303 S.W.3d at 251 (citing In re Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App. 2005); White v. Moody, 171 S.W.3d 187, 192 (Tenn. Ct. App. 2004)). "The best interests analysis is separate from and subsequent to the determination that there is clear and convincing evidence of grounds for termination." Id. at 254. The existence of a ground for termination "does not inexorably lead to the conclusion that termination of a parent's rights is in the best interest of the child." In re C.B.W., No. M2005-01817-COA-R3-PT, 2006 WL 1749534, at *6 (Tenn. Ct. App. June 26, 2006).

         B. Grounds for Termination

         1. Abandonment by Failure to Support

         One of the grounds the legislature has determined constitutes a basis for terminating an individual's parental rights is "abandonment, " as that term is defined in Tenn. Code Ann. § 36-1-102. Tenn. Code Ann. § 36-1-113(g)(1). Section 36-1-102(1)(A)(i) defines abandonment, in part, as a parent's willful failure to support or make reasonable payments towards the support of a child for a period of four consecutive months immediately preceding the filing of a termination petition. If a parent is incarcerated when the petition is filed, or if a parent is incarcerated during all or a part of the four months immediately preceding the initiation of the termination proceeding, abandonment by failure to support occurs if the parent willfully fails to support or make reasonable payments towards the support of a child for four consecutive months immediately prior to the parent's incarceration. Tenn. Code Ann. § 36-1-102(1)(A)(iv). "Willful conduct consists of acts or failures to act that are intentional or voluntary rather than accidental or inadvertent." In re Audrey S., 182 S.W.3d at 863. A parent's failure to support is "willful" if he or she has '"the capacity to provide the support, makes no attempt to provide support, and has no justifiable excuse for not providing the support."' Dep't of Children's Servs. v. Culbertson, 152 S.W.3d 513, 524 (Tenn. Ct. App. 2004) (quoting In re Adoption of Muir, No. M2002-02963-COA-R3-CV, 2003 WL 22794524, at *5 (Tenn. Ct. App. Nov. 25, 2003)). If a parent's failure to support is out of his or her control, that parent's failure will not be termed "willful." In re Adoption of Angela E., 402 S.W.3d 636, 640 (Tenn. 2013). Whether a parent failed to support a child is a question of fact, but whether a parent's failure to support a child was willful is a question of law. Id.

         The legislature presumes a parent who is at least eighteen years old is aware of his or her legal obligation to support his or her child(ren), even if there is no court order requiring the parent do so. Tenn. Code Ann. § 36-1-102(1)(H); David A. v. Wand T., No. M2013-01327-COA-R3-PT, 2014 WL 644721, at *8 (Tenn. Ct. App. Feb. 18, 2014). A parent's failure to support his or her child(ren) during the relevant four-month period cannot be cured by providing support after the termination petition is filed. Tenn. Code Ann. § 36-1-102(1)(F).

         The Department filed the termination petition on April 27, 2017. Mother was in jail from sometime in March until the end of May 2017. Because Mother was in jail when the petition was filed, the relevant four-month period for purposes of Tenn. Code Ann. § 36-1-102(1)(A)(iv) was four months prior to the day Mother went to jail in March 2017.[4] Mother testified at trial that she had no medical or physical conditions that prevented her from working. She testified that she earned money cleaning houses for a few weeks while she was in Arkansas, but the record does not reflect how much Mother earned in that pursuit. Mother also testified that she worked at the Holiday Inn part-time earning $8 an hour for about three weeks before she was incarcerated in March 2017.

         The evidence is undisputed that Mother paid nothing towards the support of her children during the relevant four-month period. The only support Mother paid during the pendency of this matter was $400 that her mother gave her to purge herself of contempt in 2017, after the termination petition was filed. The trial court found that DCS proved the ground of abandonment by failure to support by clear and convincing evidence. We disagree. Although the record shows that Mother was aware of her responsibility to pay child support, we find DCS failed to prove by clear and convincing evidence that Mother had the capacity to pay support during the relevant period. "A parent who fails to support a child because he or she is financially unable to do so is not willfully failing to support the child." In re Audrey S., 182 S.W.3d at 864 n.33; see In re M.J.B. & M.W.S., 140 S.W.3d 643, 655 (Tenn. Ct. App. 2004) (finding record lacked evidence that parent "had any disposable resources that she could have used to support her children").

         The only evidence in the record regarding Mother's income during the relevant period is that she worked part-time at the Holiday Inn making $8 an hour and that she cleaned houses in Arkansas for a few weeks. We don't know how much she earned cleaning houses. Mother testified that she lived in a tent and in a car following her in-patient treatment and that she lived with family members in Arkansas at the end of December 2016 and the first part of 2017. The record does not include firm dates of when she lived in these various places, and Mother did not testify that she had any money to pay for her living expenses. Without evidence to establish that Mother had the ability to pay support for her children during the relevant time period, we conclude that DCS failed to show by clear and convincing evidence that Mother failed to ...


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