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In re Raeshad B.

Court of Appeals of Tennessee, Nashville

May 20, 2019


          Session January 8, 2019

          Appeal from the Chancery Court for Sumner County No. 2017-AD-11 Louis W. Oliver III, Chancellor

         Nearly three years after a child was placed with them by an unlicensed child placing agency, the child's guardians petitioned to terminate the parental rights of the child's parents. The chancery court found two statutory grounds for termination: abandonment by willful failure to visit and abandonment by willful failure to support. The court also found that termination of parental rights was in the child's best interest. Only the child's mother appeals. We conclude that the evidence was less than clear and convincing as to each of the alleged statutory grounds. So we reverse the termination of mother's parental rights.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed

          Shyanne C. Riddle, Nashville, Tennessee, for the appellant, Askia T.

          Wende J. Rutherford, Nashville, Tennessee, for the appellees, Barry B. and Jennifer B.

          Jacob Fordham, Gallatin, Tennessee, Guardian ad Litem.

          W. Neal McBrayer, J., delivered the opinion of the court, in which Andy D. Bennett, J., joined.





         On April 11, 2014, a volunteer with Jonah's Journey contacted Barry B. and Jennifer B. (together, "Guardians," or individually, "Mr. B." and "Mrs. B.") about 11- month-old Raeshad, whose mother Askia T. ("Mother") was incarcerated. A ministry of a local church, Jonah's Journey assisted incarcerated mothers by placing their children with Christian families. It was regarded as "an alternative to the children going to foster care with Department of Children's Services." It was not licensed as a child placing agency. See Tenn. Code Ann. § 37-5-501(b)(7) (2014) (defining "child placing agency").

         Guardians had attended an informational meeting for Jonah's Journey the previous month. According to Mrs. B., prior to the April call about Raeshad, "[a]ll we did was sign a piece of paper and I think we left our phone number and our e-mail address maybe." In comparing Jonah's Journey with their previous years of experience as foster parents for the Department of Children's Services, Mr. B. agreed that "there was less red tape with Jonah's Journey, less paperwork, less oversight [and] rules and regulations."

         During the call, the volunteer for Jonah's Journey informed Guardians that the child had to be placed that day. Guardians were also informed that Raeshad required further surgery for clubfeet. Guardians agreed to the placement, and Raeshad came to their home with only the clothes on his back, a bottle, a blanket, and a limited power of attorney that had been executed by Mother. The limited power of attorney, which misspelled Jonah's Journey as "Jonas Journey," granted Guardians temporary custody of Raeshad and authorized Guardians to "secur[e] and mak[e] any necessary provisions for my child [sic] care, comfort, maintenance and any medical care, treatment or support." The power of attorney further specified that the temporary custody would only remain in effect until Mother's release from custody.

         The last minute arrangements were never part of the plan. Mother became pregnant with Raeshad while on parole for felony drug possession. After violating her parole, Mother became concerned that she might be arrested during the pregnancy or just after giving birth. Leaving the child with his father, Rae B. ("Father"), was not an option for various reasons. And Mother did not want the child to go into the state's custody.

         Through Jonah's Journey, Mother met a prospective couple, other than Guardians, who were willing to care for Raeshad during her incarceration. Mother planned to let the other prospective couple take Raeshad from the hospital. But after giving birth, Mother had a change of heart. She decided to take Raeshad home and stay with him through an initial surgery, which was to take place in the coming months, for his clubfeet. The need for multiple surgeries had been revealed through an ultrasound during Mother's pregnancy.

         Mother cared for Raeshad through his first surgery, but she was arrested just shy of Raeshad's first birthday. By that time, the other prospective couple could no longer take Raeshad, so Jonah's Journey contacted Guardians. Mother met Guardians for the first time when they brought Raeshad to the prison for a visit. Guardians continued to bring the child for visits every other week throughout Mother's incarceration.

         In October 2014, Mother moved to a step-down program in Chattanooga. Despite the over 100 mile distance between Guardians' home and the Chattanooga facility, Guardians continued to facilitate visits between Mother and Raeshad. On January 21, 2015, Mother was released.

         Following her release, Mother moved in with a relative, Thiakia T. ("Cousin"), in Antioch. Although by its terms the limited power of attorney and thus the temporary custody had expired, Mother and Mrs. B. both proceeded as if the transition would not be immediate. Since Mother's incarceration, another entity had taken over the work of Jonah's Journey, and it was now a licensed child placing agency. But Mother did not agree to participate in the licensed program. So, as Mrs. B. described the situation, "[i]t was up to the mother and the caregivers to work things out."

         To begin, Mother and Mrs. B. agreed to an overnight visit. Their recollections of the timing of that first post-release visit differed. According to Mrs. B., the visit took place nearly a month after Mother's release. According to Mother, she visited ten days after her release. Both did agree that Mrs. B. brought Raeshad to Cousin's home for the visit.

         At that time, Mother planned to move from her cousin's home into transitional housing offered through a local non-profit. When that plan did not work out, Mother led an itinerate life. While Mother visited her child roughly once a month during the first half of the year, she did not visit at all in August, September, or October. Mother's moves and lack of communication frustrated Mrs. B. As Mrs. B. described matters, "[i]t was very vague, a lot of unanswered questions, and I don't want to be a drill sergeant. I didn't want to be her mother. I just wanted to know a couple of things for safety purposes, for a safe environment for [Raeshad]."

         In November, Mother called Mrs. B., requesting that she bring Raeshad to the home of a friend of Mother's for a visit. Mrs. B. declined because she "didn't know the friend's name or situation." Instead, she agreed to meet Mother at a local church on a Friday. Saturday morning, Mrs. B. received a call from a friend who had spotted Raeshad at a restaurant where Mother worked. Mrs. B. called Mother, and Mother explained that she had been called into work unexpectedly and that Raeshad was never out of her sight. Mrs. B. described Mother as very angry with Mrs. B.'s inquiry.

         Later that evening, Mother called Mrs. B. back to say that she was keeping Raeshad. But the very next day, Mother texted Mrs. B. to ask if she could take Raeshad because Mother had to work. It was as if the previous conversation never happened. Mrs. B. agreed to pick up the child.

         In December, Mother visited with Raeshad again. Then on the day after Christmas, Mother called to inform Mrs. B. that she was moving to Jackson, Tennessee, and taking Raeshad with her. Mother claimed that she had first alerted Guardians to her potential move in October. Mother's mother lived in Jackson, and it was Mother's hometown. As Mother later explained,

Nashville was not doing it for me. It was all closed doors. I'm an incarcerated woman. I have felonies on my background. Nashville was just beating me down, so it was not like I volunteered just to go away and get away from everybody freely, I needed to get away because either I was going to go back to the same stuff I used to do in my past or probably would have wind [sic] up dead, homeless on the street.

         Mrs. B. opposed the idea of Mother taking Raeshad with her. She suggested that Mother first get a job, an apartment, and arrange for child care in Jackson. According to Mrs. B.,

I kept reiterating it would be best if [Mother] had a job, place of [her] own -- just get those two things -- were crucial to having stability, and it was not -- it was not being met with any kind of agreement. She was going to come get him regardless. She did not like what I was saying.

         So she told Mother "that [they] were going to let a judge decide because [Mother] wasn't doing anything stable in [Mrs. B.'s] opinion, and [Guardians] had a little experience with DCS."

         On December 29, 2015, Guardians did go to the clerk's office for the juvenile court to explain their situation. But they were advised that they needed an attorney.

         Faced with Guardians' refusal to let her take her child, Mother contacted the founder of Jonah's Journey, but by that point, she was no longer associated with the program. The founder remembered being confused by both the call and why Mother did not already have her child. She recalled the following about the call:

[Mother] was really upset with me and she was having words with me, and I was, like, I don't understand what you're wanting me to say. She was trying to get me to say she was part of a program. I was, like, you were part of Jonah's Journey, the ministry. You're not part of Jonah's Journey, the licensure. I'm not understanding what you ...

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