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In re Kaden W.

Court of Appeals of Tennessee, Knoxville

May 13, 2019

In re KADEN W.

          Assigned on Briefs February 20, 2019

          Appeal from the Juvenile Court for Anderson County No. J32585/17-1904 Brian J. Hunt, Judge.

         This is a termination of parental rights case involving the parental rights of the mother, Tora W. ("Mother"), to her minor child, Kaden W. ("the Child"), who was eleven years old at the time of trial. On January 19, 2017, the Anderson County Juvenile Court ("trial court") found that the Child was dependent and neglected and entered an order removing the Child from Mother's custody and placing the Child into the temporary legal custody of the Tennessee Department of Children's Services ("DCS"). The Child was immediately placed in foster care, where he remained at the time of trial. On December 20, 2017, DCS filed a petition to terminate the parental rights of Mother.[1] Following a bench trial, the trial court terminated Mother's parental rights to the Child upon determining by clear and convincing evidence that (1) Mother had abandoned the Child by failing to provide a suitable home for him, (2) Mother had not substantially complied with the reasonable requirements of the permanency plans, and (3) the conditions leading to the Child's removal from Mother's custody persisted. The trial court further found by clear and convincing evidence that termination of Mother's parental rights was in the best interest of the Child. Mother has appealed. Discerning no reversible error, we affirm.

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

          Matthew Birdwell, Oak Ridge, Tennessee, for the appellant, Tora W.

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

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and J. Steven Stafford, P.J., W.S., joined.



         I. Factual and Procedural Background

         Mother and the Child were previously involved with DCS and the trial court in 2015 when DCS filed a "Petition to Transfer Temporary Legal Custody." In its petition, DCS requested that the court find the Child to be dependent and neglected and place custody of the Child with a proposed legal custodian, E.S.[2] The trial court subsequently placed the Child into the custody of his biological father, Navy S. ("Father"), on May 22, 2015. The adjudicatory hearing was continued more than once to allow Mother to work with DCS's Family Support Services or to allow the attorneys and parties to prepare for the upcoming adjudicatory hearing. On September 3, 2015, DCS voluntarily dismissed its "Petition to Transfer Temporary Legal Custody," and the trial court restored custody of the Child to Mother.

         On March 29, 2016, DCS filed a "Petition for Order Controlling Conduct & For Protective Supervision," requesting that the trial court find the Child dependent and neglected, as well as to request that the trial court "require protective supervision" and "control the conduct of the [parents]."[3] In its petition, DCS alleged, inter alia, that Mother had not taken the Child to the doctor to obtain his prescription medication for his severe ADHD and that the Child was having difficulty in school since returning to Mother's custody. The trial court subsequently entered an order requiring that Mother comply with the "non-custodial permanency plan" as follows:

The mother shall complete a Mental Health Assessment, a parenting assessment, and follow the recommendations from both assessments. The mother shall maintain stable housing, keep [the Child's] doctor's appointments and ensure he takes all medications as prescribed. [The Child] shall not have any unexcused tardies or unexcused absences from school, and shall bring all of his grades up to passing, and that the mother shall attend all parent/teacher conferences as requested by the school.
[Mother] shall work with in home services as long as necessary and comply with DCS.

         An adjudicatory hearing was ultimately conducted on January 19, 2017. The trial court entered an adjudicatory and dispositional hearing order on the date of the hearing, reflecting that Mother waived her adjudicatory hearing and stipulated that the Child had "improper guardianship at the time of removal by the Mother - [Tennessee Code Annotated §] 37-1-102(b)(13)(F)." The trial court therefore found the Child to be dependent and neglected. Consequently, Mother's parenting time with the Child was restricted to supervised visitation at that time.

         Also on January 19, 2017, the trial court entered a bench order, removing the Child from Mother's custody and placing the Child in the physical and legal custody of DCS. The trial court stated in its bench order that probable cause indicated that the Child was dependent and neglected. The court also determined that continuation of Mother's custody was contrary to the Child's proper welfare because Mother "tested positive for amphetamine and methadone at court [on January 19, 2017, ] and has been noncompliant with both the order controlling conduct and [the Family Support Services] case in regards to completing drug treatment and making sure the child receives his medication and based upon the unavailability of the father." In turn, the trial court concluded that DCS had made reasonable efforts to prevent the Child's removal from Mother's home, including parenting classes, drug and alcohol counseling for Mother, intensive case management, residential treatment for Mother, "court-ordered services (FSS case) and [a] petition for order controlling conduct."

         Following the Child's placement into DCS custody, DCS developed permanency plans on February 9, 2017, and September 8, 2017, which included requirements for Mother to complete. The trial court approved the permanency plans on March 7, 2017, and October 10, 2017, respectively, finding the requirements to be reasonably related to the reasons the Child had been removed from Mother's custody.

         Shortly after the Child entered foster care, Mother completed an inpatient drug and alcohol detoxification program at Centerpointe, which had begun on January 26, 2017, and continued through February 5, 2017. Upon Mother's release from Centerpointe, Mother was to complete intensive outpatient treatment, attend Alcoholics Anonymous/Narcotics Anonymous ("AA/NA") meetings, and complete aftercare. On February 9, 2017, Mother tested positive on a drug screen for benzodiazepines and buprenorphine but held prescriptions for those medications from Centerpointe.

         Mother completed a psychological evaluation on March 7, 2017, performed by H. Abraham Brietstein, Ph.D., a clinical psychologist. In his psychological evaluation report, Dr. Brietstein concluded as follows:

SUMMARY AND RECOMMENDATIONS: [Mother] was referred due to failing a recent drug screen, which resulted in the removal of her children from her care. She has a long history of drug addiction involving opioids and obtained methadone for a number of years from a clinic that sounds as if it had questionable practices. Her children have also been removed in the past although they were returned. [Mother] has always lived with her mother, although she has 2 children by 2 different m[e]n, and her youngest child is now in his father's care. She is noted to function at a very low level and appears to meet the criteria for intellectual disability. As such, her intellectual limitations contribute to her poor parenting practices, affecting her ability to make appropriate judgments on their behalf. She has received SSI [Supplemental Security Income] benefits secondary to suffering a brain injury at the age of 9 when the bicycle she was [riding] was struck by a minivan. She supports herself on the disability benefits and has only briefly been employed. Her personality is one in which she is antagonistic toward authority figures, including DCS, and is generally suspicious and distrustful of other people's motives, which further complicates her ability to benefit from their services. Based on the above, the following are some recommendations:
1. [Mother] should be involved in outpatient drug rehabilitation in order to remain clean and should be able to pass random drug screens on a consistent basis before having her children returned.
2. [Mother's] mother should also participate in drug rehabilitation and be able to pass random drug screens if [Mother] continues to live with her mother.
3. Parenting classes need to be provided at a more basic level for her to benefit from them.
4. A parenting or bonding assessment should be completed to determine the extent to which the children are attached to their mother.
5. Should [Mother] fail to successfully complete the above recommendations, termination of parental rights should be considered.

         On October 10, 2017, Mother participated in a drug screen and proved negative for all tested substances. On October 13, 2017, however, Mother tested positive on a nail-bed drug screen for methamphetamine, the results of which included up to a six-month timeframe preceding the test. On October 31, 2017, Mother completed an alcohol and drug assessment. During the assessment, Mother participated in an additional drug screen, testing positive for cocaine, amphetamines, methamphetamine, and alcohol. The assessor accordingly recommended that Mother complete intensive outpatient treatment, continue compliance with her mental health service provider, participate in a twelve-step program, and participate in an aftercare program.

         Cody Kinser, the DCS family service worker for the family from January 19, 2017, through November 2017, testified during trial that Mother was participating in the case "for the most part" after the Child entered DCS custody. He further explained that she had stable housing during that time and was residing with the maternal grandmother ("Grandmother"). Mr. Kinser also related that DCS had concerns that Grandmother had substance abuse issues. According to Mr. Kinser, although Mother had completed a psychological evaluation and an alcohol and drug assessment while he was working on the case, Mother had failed to complete the recommendations therefrom, including parenting classes and intensive outpatient drug treatment.

         Concerning DCS efforts, Mr. Kinser additionally reported that he had referred Mother to the service provider for the alcohol and drug assessment, maintained regular contact with Mother during that time, offered random drug screens to Mother, and offered her encouragement and recommendations. DCS also had submitted "PSGs," case services funded by the state, to pay for Mother's psychological evaluation, psychological services, therapeutic supervised visits, ETHRA transportation, and parenting classes.

         DCS family service worker, Desiree Shelton, assumed responsibility for the case in November 2017, following Mr. Kinser's transfer to a different position within DCS. Ms. Shelton remained the caseworker thereafter. During trial, Ms. Shelton testified that when she was assigned the case, Mother still needed to complete intensive outpatient treatment, complete parenting classes, and provide proof of transportation. Ms. Shelton noted that she had attempted to assist Mother with gaining admittance into an intensive outpatient program for drug treatment. Furthermore, Ms. Shelton had spoken to the service provider offering parenting classes, instructing that the provider "may need to go slower with her and to be more . . . one-on-one and personal." According to Ms. Shelton, the service provider had not received a response from Mother after contacting her.

         On January 12, 2018, Mother tested positive on a drug screen for amphetamines and methamphetamine. Concerning the event, Ms. Shelton related that Mother informed her that the January 2018 positive drug screen result was caused by a prescription for stomach medicine. According to Ms. Shelton, although Mother agreed to provide the respective prescription, she never did. During the period that Ms. Shelton was assigned the case, Mother had not completed her parenting classes and had not completed any type of alcohol or drug treatment. Ms. Shelton attempted to inspect Mother's home but was denied entry because Mother would not answer the door. Ms. Shelton opined that Mother did not trust her.

         Upon the request of Mother's trial counsel, a social worker for Quality Care for the Heartland Company, Denee Foisy, become case manager for Mother in June 2017 to assist DCS in providing services to Mother. As such, Ms. Foisy attempted to assist Mother in completing intensive outpatient treatment, parenting classes, and random drug screens. Regarding intensive outpatient treatment, Ms. Foisy gave information to Mother with several providers she could approach to seek treatment. Ms. Foisy explained that Mother ultimately chose Hope of East Tennessee due to its close proximity to her home. Ms. Foisy also assisted Mother in locating parenting classes and further instructed Mother to appear at Hope of East Tennessee once a week to undergo a random drug screen. According to Ms. Foisy, of approximately forty or forty-five occasions she requested that Mother appear for a drug screen, Mother participated in only one drug screen, "and it was only because [Mother] went to [intensive outpatient] intake for East Tennessee and they make you."

         Upon Ms. Foisy's determination that Mother needed more intense services, she referred Mother for Department of Intellectual and Developmental Disability ("DIDD") services. With Ms. Foisy's assistance, Mother was approved to receive DIDD services. As such, by trial, DIDD had been providing services to Mother for approximately three weeks and was in the process of determining what additional services Mother needed. According to Ms. Foisy, although she had also attempted to provide Mother with those services, Mother definitely thought she had completed almost everything.

         On December 20, 2017, DCS filed its petition to terminate Mother's parental rights to the Child. The trial court conducted a trial concerning the termination petition on March 27, 2018. When Mother did not appear during the trial, her attorney stated that she could not appear because her disability caused her not to "handle these situations very well." Mother's attorney also conveyed having informed Mother that "her hysterical behavior . . . would not be accepted in [the] courtroom." At the conclusion of trial, the trial court terminated Mother's parental rights upon a determination by clear and convincing evidence that (1) Mother had abandoned the Child by failing to provide a suitable home, (2) the conditions which had led to the Child's removal from Mother's custody persisted, and (3) Mother had not substantially complied with the reasonable requirements of her permanency plans. The trial court further found by clear and convincing evidence that termination of Mother's parental rights was in the Child's best interest. Mother timely appealed.

         II. Issues Presented

         Mother raises one issue for review, which we have restated as follows:

1. Whether DCS provided reasonable efforts to assist Mother in accordance with Mother's and the Child's specific needs.

         DCS has presented two additional issues for review, which we have restated slightly as follows:

2. Whether the trial court erred by finding clear and convincing evidence to support statutory grounds for termination of Mother's parental rights.
3. Whether the trial court erred by finding clear and convincing evidence that termination of Mother's parental rights was in the best interest of the Child.

         III. Standard of Review

         In a termination of parental rights case, this Court has a duty to determine "whether the trial court's findings, made under a clear and convincing standard, are supported by a preponderance of the evidence." In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006). The trial court's findings of fact are reviewed de novo upon the record, accompanied by a presumption of correctness unless the evidence preponderates against those findings. See Tenn. R. App. P. 13(d); see also In re Carrington H., 483 S.W.3d 507, 524 (Tenn. 2016); In re F.R.R., III, 193 S.W.3d at 530. Questions of law, however, are reviewed de novo with no presumption of correctness. See In re Carrington H., 483 S.W.3d at 524 (citing In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009)). The trial court's determinations regarding witness credibility are entitled to great weight on appeal and shall not be disturbed absent clear and convincing evidence to the contrary. See Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).

         "Parents have a fundamental constitutional interest in the care and custody of their children under both the United States and Tennessee constitutions." Keisling v. Keisling, 92 S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that "this right is not absolute and parental rights may be terminated if there is clear and convincing evidence justifying such termination under the applicable statute." In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988) (citing Santosky v. Kramer, 455 U.S. 745');">455 U.S. 745 (1982)). As our Supreme Court has explained:

The parental rights at stake are "far more precious than any property right." Santosky [v. Kramer], 455 U.S. [745, ] 758-59 [(1982)]. Termination of 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 of the child." Tenn. Code Ann. § 36-1-113(1)(1); see also Santosky, 455 U.S. at 759 (recognizing that a decision terminating parental rights is "final and irrevocable"). In light of the interests and consequences at stake, parents are constitutionally entitled to "fundamentally fair procedures" in termination proceedings. Santosky, 455 U.S. at 754; see also Lassiter v. Dep't of Soc. Servs. of Durham Cnty, N.C. , 452 U.S. 18, 27 (1981) (discussing the due process right of parents to fundamentally fair procedures).
Among the constitutionally mandated "fundamentally fair procedures" is a heightened standard of proof-clear and convincing evidence. Santosky, 455 U.S. at 769. This standard minimizes the risk of unnecessary or erroneous governmental interference with fundamental parental rights. Id.; In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010). "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 at 596 (citations omitted). The clear-and-convincing-evidence standard ensures that the facts are established as highly probable, rather than as simply more probable than not. In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct. App. 2005).
* * *
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. In re Bernard T., 319 S.W.3d at 596-97.

In re Carrington H., 483 S.W.3d at 522-24. "[P]ersons seeking to terminate [parental] rights must prove all the elements of their case by clear and convincing evidence," including statutory grounds and the best interest of the child. See In re ...

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