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In re Keilyn O.

Court of Appeals of Tennessee, Nashville

June 28, 2018


          Assigned on Briefs May 1, 2018

          Appeal from the Juvenile Court for Bedford County No. 2016-JV-217 Charles L. Rich, Judge

         Mother appeals the termination of her parental rights to two children. The juvenile court found six statutory grounds for termination and that termination of the mother's parental rights was in the children's best interest. We conclude that the evidence was less than clear and convincing as to one of the statutory grounds and that two other statutory grounds did not apply in this instance. But the record contains clear and convincing evidence to support three grounds for termination and that termination is in the children's best interest. So we affirm the termination of the mother's parental rights.

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

          Emeterio "Terry" R. Hernando, Lewisburg, Tennessee, for the appellant, Mary O.

          Herbert H. Slatery III, Attorney General and Reporter, and Brian A. Pierce, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services.

          W. Neal McBrayer, J., delivered the opinion of the court, in which Arnold B. Goldin, JJ., joined. Thomas R. Frierson II, J., filed a concurring opinion.





         Mary O. ("Mother") had five children, ranging in age from sixteen to three. This case involves termination of her parental rights to two of those children, Keilyn, born October 2002, and Jahlin, born January 2004. Mother had a long history of addiction to prescription medications, a problem she attempted to remedy several times over the years with limited success.

         Her present difficulties began in September 2015 after her boyfriend evicted her from his home. She moved in with friends, along with three of her children, including Keilyn and Jahlin. In November, Mother left her children with her friends and enrolled in a 14-day inpatient drug treatment program in Madison, Alabama. While Mother was gone, one of the children threatened another student at school and was taken to the police department. When Mother's friends were notified, they informed the police that they were no longer willing to care for the children due to the incident at school and the children's behavior in the home.

         On November 20, 2015, DCS took the children into emergency custody. And, shortly thereafter, DCS filed a petition for temporary legal custody and to find the children dependent and neglected in the Juvenile Court of Bedford County, Tennessee.

         In December 2015, Mother participated by telephone in the development of a permanency plan. The goal of the plan was to return the children to Mother's custody. Based on conversations with Mother, DCS had three primary concerns: Mother's history of drug addiction, her untreated mental health issues, and her lack of housing. To address these concerns, the plan required Mother to complete a series of action steps. Mother needed to provide proof of completion of the Alabama program and any follow up recommendations, sign a release of information for the program, participate in random drug screens, and keep anyone under the influence of alcohol or drugs away from the children. Because Mother reported that she had been diagnosed with bipolar disorder and attention-deficit hyperactivity disorder or ADHD, she was required to submit to a mental health assessment, follow all recommendations, provide proof of completion, and sign a release. Mother also needed to secure housing for a three-month period and notify DCS of the address. The plan anticipated that Mother would pay child support and participate in supervised visitation with the children. DCS informed Mother that it could help her complete her action steps.[1]

         Soon after development of the plan, Mother was arrested for a probation violation.[2] She pled guilty to failure to appear and evading arrest. She remained incarcerated from January 3 to March 11, 2016.

         In Mother's absence, the juvenile court held a ratification hearing on the permanency plan. After reviewing the plan, the court found the requirements in the plan to be reasonable and related to remedying the conditions that necessitated foster care and were in the best interests of the children.

         Following her release, Mother attended the March 2016 adjudicatory hearing with her appointed counsel. She stipulated at the hearing that the facts alleged in the petition for temporary custody were true. And the court found by clear and convincing evidence that the children were dependent and neglected. The court also ordered supervised visitation and directed Mother to pay $50 per week in child support.

         The DCS family service worker (the "FSW") assigned to the case met with Mother and her attorney that same day and reviewed the permanency plan and the criteria and procedures for termination of parental rights. She specifically told Mother that she could lose her parental rights if she failed to visit her children or pay child support. She also provided Mother with a copy of the plan and the criteria for termination of parental rights. Mother told the FSW that she was living with a friend but did not provide the address. She also explained that she was in the process of obtaining a new telephone and would let the FSW know her new number.

         Even with a new phone number, the FSW had difficulty contacting Mother. Mother did not answer the FSW's calls. And when the FSW scheduled a meeting, Mother did not show.

         During a phone conversation in early April 2016, the FSW again discussed the requirements of the plan with Mother. Mother reported on her progress under the plan, specifically that she was attending narcotics anonymous meetings, seeing a counselor, and actively looking for new employment. But she still did not provide an address, and she declined the FSW's offer to help her complete her responsibilities.

         In April, Mother found a job. Between April and November 2016, she earned $800 a month. After paying her expenses, Mother typically had $200-$400 in discretionary funds. Although she never paid any formal child support for Keilyn or Jahlin, Mother bought various items for the boys, such as school supplies, backpacks, shoes, groceries, and soap.

         DCS placed Keilyn and Jahlin in a resource home approximately four hours away from Mother. DCS initially allowed the children to visit their maternal grandmother on weekends so that Mother could visit under the grandmother's supervision. But on July 1, 2016, the grandmother did not return the children to foster care as scheduled. And, on July 6, it was discovered that the maternal grandmother had allowed the children to spend several days unsupervised with Mother. DCS discontinued the weekend visits at grandmother's home. Mother and maternal grandmother were informed that they should visit the children at the foster home. Mother testified that she spoke with her children every day but did not visit them again until Thanksgiving 2016 when DCS allowed the children to spend the holiday at their maternal grandmother's home.[3]

         On July 20, Mother informed the FSW that she had completed her action steps. The FSW requested that Mother meet with her to review her progress on the permanency plan and to provide the necessary proof of completion. The FSW explained that, without the documentation, she could not start the reunification process. Despite this warning, Mother failed to comply with either request.

         During July and August, although Mother spoke with the FSW and exchanged text messages, she failed to appear for scheduled meetings even when she selected the meeting date. In late August, after numerous requests for a meeting, Mother told the FSW that a meeting was unnecessary as she had completed her responsibilities under the permanency plan and did not need any assistance. After August, the FSW again lost contact with Mother.

         On November 9, 2016, DCS filed a petition to terminate Mother's parental rights to Keilyn and Jahlin. The petition alleged six grounds for termination: abandonment by failure to visit, abandonment by failure to support, abandonment by failure to provide a suitable home, substantial noncompliance with the permanency plans, persistent conditions, and failure to assume custody. DCS was unable to personally serve Mother and was granted permission to serve her by publication after presenting proof that she was evading service.

         In April 2017, over a year since her last meeting with DCS, Mother met with the FSW to discuss her progress. Again, Mother failed to provide proof that she had completed any of her responsibilities. The FSW created a list of her most important action steps, which Mother acknowledged by signing. But when the topic of termination of parental rights arose, Mother became angry and left.

         In May, Mother tested positive for methamphetamine and THC.[4] Also in May, Mother finally obtained a mental health evaluation. Mother testified that the evaluation recommended inpatient treatment, but she did not follow the recommendation. Instead, she obtained two more evaluations from other providers, hoping for a more favorable result. At the time of trial, Mother had not received any treatment for her mental health issues. And although she had been prescribed medications for her diagnoses in the past, she admitted that she had not taken the prescribed medications while the boys were in foster care.

         In June 2017, a new family service worker was assigned to Mother's case. Although she immediately requested a meeting with Mother to discuss her progress, the new family service worker encountered similar difficulties as the FSW. Eventually, Mother disclosed that she was avoiding ...

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