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In re Trey S.

Court of Appeals of Tennessee, Nashville

June 20, 2019

IN RE TREY S. ET AL.

          Assigned on Briefs April 1, 2019

          Appeal from the Juvenile Court for Williamson County No. 35799 Sharon Guffee, Judge

         A trial court terminated a mother's and father's parental rights to three children on the grounds of wanton disregard for the children's welfare, substantial noncompliance with a permanency plan, and persistence of conditions. Both parents appealed the termination. We affirm the trial court's judgment in all respects.

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

          Jennifer L. Honeycutt, Franklin, Tennessee, for the appellant, Elizabeth D.R. David Mitchell Jones, Franklin, Tennessee, for the appellant, Tony E.S., Jr.

          Herbert H. Slatery, III, Attorney General and Reporter, and Matthew Daniel Cloutier, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services.

          Karen Denise Huddleston Johnson, Brentwood, Tennessee, Guardian Ad Litem.

          Andy D. Bennett, J., delivered the opinion of the Court, in which D. Michael Swiney, C.J., and John W. McClarty, J., joined.

          OPINION

          ANDY D. BENNETT, JUDGE

         I. INTRODUCTION

         In this parental termination case, Elizabeth D.R. ("Mother") and Tony E.S., Jr. ("Father") are the parents of Trey S., Ryleigh S., and Drake S., who were born in 2009, 2011, and 2014, respectively. The Department of Children's Services ("DCS" or "the Department") took custody of the children by court order in June 2016 and filed a petition to terminate the parents' rights on December 20, 2017. The grounds DCS asserted against Mother and Father included abandonment by incarcerated parent through wanton disregard for the children's welfare pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(iv). The Department also alleged the ground of persistence of conditions pursuant to Tenn. Code Ann. § 36-1-113(g)(3) against Mother and substantial noncompliance with the permanency plan pursuant to Tenn. Code Ann. § 36-1-113(g)(2) against Father. The trial court terminated both Mother's and Father's parental rights after finding that DCS proved by clear and convincing evidence each of the grounds it asserted and that it was in the children's best interests for Mother's and Father's rights to be terminated. Mother and Father each appeal the trial court's judgment, arguing that the trial court erred in holding that DCS proved by clear and convincing evidence the grounds DCS asserted and that it was in the children's best interests that the parents' rights be terminated.

         II. FACTUAL AND PROCEDURAL BACKGROUND

         The Department received a referral on June 8, 2016, stating that Trey, Ryleigh, and Drake were exposed to drugs and were suffering from educational neglect, medical maltreatment, lack of supervision, and psychological harm. Mother had left the family home with the children and moved into a domestic violence shelter after Father hit her and placed her in fear for her safety. While living at the shelter, Mother obtained a six-month order of protection against Father that also covered the children. She informed a DCS employee that the children had not been to a pediatrician in over a year. Trey, the eldest child, was complaining of tooth pain while he was at the shelter, and Mother told a DCS employee that none of the children had ever seen a dentist. Trey was nearly seven years old at that point and had never attended school. While they were in the shelter, the children's immunizations were brought up to date. Mother submitted to a drug screen on June 20 and tested positive for methamphetamine, amphetamine, and buprenorphine, and she admitted to using cocaine a few weeks earlier.

         The Department removed the children from Mother's custody on June 20 and filed a petition for temporary custody on June 21, 2016. The juvenile court granted the petition the day it was filed and appointed a guardian ad litem on June 24, 2016. The children were placed in a foster home shortly after their removal. Mother and Father entered into a permanency plan with DCS on July 7, 2016, and the juvenile court ratified the plan on August 9. The permanency goal was reunification with Mother and Father, and the target date was January 8, 2017. The juvenile court held an adjudicatory hearing on September 27, during which both Mother and Father stipulated to the children's dependency and neglect, and the court entered an order on October 12, 2016, adjudicating the children dependent and neglected.

         Mother and Father were working with DCS, their visits with the children were going well, they were both passing drug screens, and the children went on a trial home visit starting in late May 2017. Mother and Father were living together again by this time, and they had a new baby girl who was born shortly before the trial home visit began. On July 6, 2017, the children's home visit was terminated after Father was arrested for manufacturing between ten and seventy pounds of a Schedule VI controlled substance and Mother tested positive for methamphetamine. The children returned to the foster home where they were living before the trial home visit, and they have lived there ever since.

         Following termination of the home visit in early July, DCS created a second permanency plan for Mother and Father dated July 28, 2017, which was ratified by the juvenile court on September 12, 2017. The permanency goals of this plan included reunification with the parents and adoption, and the goal target date was October 28, 2017. Mother's and Father's responsibilities under this plan included obtaining safe and stable housing, achieving financial stability, being alcohol- and drug-free, maintaining good mental health to enable them to parent the children successfully, resolving all legal issues, and remaining involved with the children while they were in the Department's custody.[1]

         Mother was incarcerated on August 24, 2017, after disclosing to her probation officer that she had used methamphetamine. She was on probation from prior charges, and her drug use constituted a violation of her probation. Mother remained incarcerated until August 29, 2017. Mother underwent a hair follicle test on the day of her release, which came back positive for methamphetamine. Mother gave another hair sample on November 30, 2017, and that drug test also came back positive for methamphetamine.[2]

         Father underwent a hair follicle test on August 31, 2017, and his test came back positive for methamphetamine, cocaine, benzoylecgonine, and THC. In September 2017, Father was arrested and charged with domestic assault against Mother. Mother refused to testify against Father in court, resulting in the dismissal of that charge. Father was supposed to provide a hair sample in November 2017, but he refused to submit a sample when he learned that DCS requested a sample from a location on his body other than his head.[3]

         The Department filed its petition to terminate Mother's and Father's parental rights to Trey, Ryleigh, and Drake on December 20, 2017.[4] The case was tried over a period of five days, beginning on March 23, 2018, and ending on October 12, 2018. The juvenile court issued a very thorough final order terminating Mother's and Father's parental rights to the three children, finding that DCS proved by clear and convincing evidence each of the grounds on which it based its petition and that it was in the children's best interest that Mother's and Father's rights be terminated.

         III. 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," In re W.B., IV, Nos. M2004-00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618, at *6 (Tenn. Ct. App. Apr. 29, 2005), 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 in certain circumstances. Id. at 522-23; In re Angela E., 303 S.W.3d at 250-51. 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, and a parent's rights may be terminated only where a statutory basis exists. In re Angela E., 303 S.W.3d at 250; Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In re M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998).

         To terminate parental rights, a court must find 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 Carrington H., 483 S.W.3d at 522 (quoting 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). As a reviewing court, we "must 'distinguish between the specific facts found by the trial court and the combined weight of those facts."' In re Keri C., 384 S.W.3d 731, 744 (Tenn. Ct. App. 2010) (quoting In re Tiffany B., 228 S.W.3d 148, 156 (Tenn. Ct. App. 2007)). Then, we must determine "whether the combined weight of the facts . . . clearly and convincingly establishes all of the elements required to terminate" a parent's rights. Id. "When it comes to live, in-court witnesses, appellate courts should afford trial courts considerable deference when reviewing issues that hinge on the witnesses' credibility because trial courts are 'uniquely positioned to observe the demeanor and conduct of witnesses.'" Kelly v. Kelly, 445 S.W.3d 685, 692 (Tenn. 2014) (quoting State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000)).

         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. "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).

         IV. ANALYSIS

         A. Grounds for Termination

         1. Abandonment by Wanton Disregard (Mother and Father)

         The ground for termination that DCS asserted against both Mother and Father was abandonment by incarcerated parent and conduct prior to the incarceration showing a wanton disregard for the children pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(iv). Tennessee Code Annotated section 36-1-102(1)(A)(iv) defines "abandonment," in pertinent part, as:

A parent or guardian is incarcerated at the time of the institution of an action or proceeding to declare a child to be an abandoned child, or the parent or guardian has been incarcerated during all or part of the four (4) months immediately preceding the institution of such action or proceeding, and . . . the parent or guardian has engaged in conduct prior to incarceration that exhibits a wanton disregard for the welfare of the child. . . .

         Thus, a parent who was incarcerated during all or part of the four months immediately preceding the filing of the termination petition can abandon his or her children by engaging in conduct prior to the incarceration that shows a "wanton disregard" for the children's welfare. The Department filed the termination petition on December 20, 2017, with the result that the relevant four-month period began on August 20 and ended on December 19, 2017. See In re Jacob C.H., No. E2013-00587-COA-R3-PT, 2014 WL 689085, at *6 (Tenn. Ct. App. Feb. 20, 2014) (explaining that statutory four-month period covers four months ending on day before termination petition is filed).

         The statute does not define "wanton disregard." In re H.A.L., No. M2005-00045-COA-R3-PT, 2005 WL 954866, at *6 (Tenn. Ct. App. Apr. 25, 2005). Tennessee courts have held that "probation violations, repeated incarceration, criminal behavior, substance abuse, and the failure to provide adequate support or supervision for a child can, alone or in combination, constitute conduct that exhibits a wanton disregard for the welfare of a child." In re Audrey S., 182 S.W.3d at 867-68. "Our courts have consistently held that an incarcerated parent who has multiple drug offenses and wastes the opportunity to rehabilitate themselves by continuing to abuse drugs, resulting in revocation of their parole and reincarceration, constitutes abandonment of the child, and demonstrates a wanton disregard for the welfare of the child." Dep't of Children's Servs. v. J.M.F., No. E2003-03081-COA-R3-PT, 2005 WL 94465, at *7 (Tenn. Ct. App. Jan. 11, 2005) (citing In re C.T.S., 156 S.W.3d 18, 25 (Tenn. Ct. App. 2004); Dep't of Children's Servs. v. J.S., No. M2000-03212-COA-R3-JV, 2001 WL 1285894, at *3 (Tenn. Ct. App. Oct. 25, 2001); In re C.W.W., 37 S.W.3d 467, 473 (Tenn. Ct. App. 2000); G.M.C. v. A.V.I., No. E2000-00134-COA-R3-CV, 2000 WL 1195686, at *5-6 (Tenn. Ct. App. Aug. 23, 2000); Dep't. of Children's Servs. v. Wiley, No. 03A01-9903-JV-00091, 1999 WL 1068726, at *7 (Tenn. Ct. App. Nov. 24, 1999)).

         The enactment of Tenn. Code Ann. § 36-1-102(1)(A)(iv) reflects the General Assembly's recognition that "parental incarceration is a strong indicator that there may be problems in the home that threaten the welfare of the child" and that "[i]ncarceration severely compromises a parent's ability to perform his or her parental duties." In re Audrey S., 182 S.W.3d at 866. "The actions that our courts have commonly found to constitute wanton disregard reflect a 'me first' attitude involving the intentional performance of illegal or unreasonable acts and indifference to the consequences of the actions for the child." In re Anthony R., No. M2014-01753-COA-R3-PT, 2015 WL 3611244, at *3 (Tenn. Ct. App. June 9, 2015).

         Courts are not limited to the four-month period preceding a parent's incarceration to determine whether the parent has engaged in conduct evidencing a wanton disregard for his or her children's welfare. Id. at *2; In re F.N.M., No. M2015-00519-COA-R3-PT, 2016 WL 3126077, at *3 (Tenn. Ct. App. Apr. 11, 2016); see also Dep't of Children's Servs. v. Hood, 338 S.W.3d 917, 926 (Tenn. Ct. App. 2009) ("parental conduct exhibiting wanton disregard for a child's welfare may occur at any time prior to incarceration and is not limited to acts occurring during the four-month period immediately preceding the parent's incarceration"). Incarceration itself is not grounds for the termination of a parent's rights, but courts consider the incarceration a "triggering mechanism that allows the court to take a closer look at the child's situation to determine whether the parental behavior that resulted in incarceration is part of a broader pattern of conduct that renders the parent unfit or poses a risk of substantial harm to the welfare of the child." In re Audrey S., 182 S.W.3d at 866.

         a. Mother

         In concluding that DCS proved this ground against Mother by clear and convincing evidence, the trial court wrote:

The proof is undisputed Mother was incarcerated on a probation violation in Williamson County (for a 2014 felony drug conviction) from August 24-29, 2017, for a positive drug screen for methamphetamine and three additional new charges in multiple other jurisdictions (Davidson and Sumner Counties.)
Mother testified she was also on probation in Fairview and Cheatham County. She was unable to get her driver's license because of her inability to pay all the court costs and fines due to her criminal behavior. She tested positive for methamphetamine while the children were on a trial home visit. Although she denied knowledge Father was growing marijuana plants at home, there was contradictory evidence from the children that Mother would help water the plants. It was the family's "secret garden."
Mother admitted the children suffered from medical neglect for dental work. They had never been to the dentist. The testimony was the children's teeth were rotting out causing extensive dental work requiring anesthesia. She said she was incarcerated at the time and Father had the children. When she got out of jail, she did not have transportation.
She admitted to several years of drug abuse including cocaine, opiates and meth. She had some treatment in 2012 but did not ever complete a program. She would use every four to five months when she would break up with Father. She was in suboxone treatment off and on since 2012. Her substance abuse treatment was sporadic at best.
. . . .
Mother admitted stress is her trigger to relapse. She testified she was overwhelmed during the trial home visit and unable to manage the children despite frequent visits from DCS, CASA and foster mother.

         Mother admitted at trial that she was incarcerated from August 24 through 29, 2017, which was during the relevant four-month period of August 20 to December 19, 2017.[5] She was incarcerated for violating her probation by using illegal drugs. Mother's criminal history goes back to 2012, when she was convicted of simple possession. Mother explained that she was abusing medicine for which she had a prescription. She was also charged with prescription fraud and criminal impersonation in 2014 or 2015. Mother used methamphetamine after Father was arrested in July 2016, while the children were with her on their trial home visit. Mother was on probation at the time, and her drug use constituted a violation of her probation.

         Mother's criminal history is intertwined with her substance abuse. Mother testified that her drug use began six years before trial, in 2012. Initially, Mother's use was limited to Oxycodone and Opana. Mother testified that she sought treatment for her drug abuse beginning in 2012 or 2013, when she went to "detox off the pain pills." She was clean for about three years, but then she started using cocaine. Mother was asked how often she used, and she responded:

I was - - mostly I would binge. Like, if we would break up. I would go to [a friend's] house, and that's when I would use. So maybe once every four or five months.

         Mother then admitted to using methamphetamine "a couple of times" starting in 2017. When the children were placed into DCS custody in June 2016, Mother submitted to a drug screen that was positive for methamphetamine, amphetamine, and buprenorphine. Mother was surprised the test showed anything other than cocaine:

I - - I told them that when they - - when they took the kids that I don't know why it showed up for [meth], because it was cocaine that I used. I - - I told them it was cocaine, and that's what it was, or at least that's what I thought it was.[6]

         Mother explained that she relapsed around the time she lost custody of the children. She then went back into treatment and completed a twenty-eight-day program between July and August 2016. Mother testified that she went to an outpatient clinic every other week to get Suboxone, which helped with her prior addiction to opiates, and saw a therapist once a month.

         Mother denied that alcohol had been a problem for her, yet she testified that she "drank too much" one night in September 2017 when Father was arrested outside her house and charged with domestic abuse. When asked what transpired that night leading up to Father's arrest, Mother responded that she did not "really remember that night much" because she "had a lot to drink." Mother testified that the children had witnessed arguments between her and Father and that her daughter witnessed Father's physical abuse of Mother that led Mother to seek a restraining order against him.

         The evidence revealed that Mother was not taking proper care of the children's medical and/or dental needs before they entered the State's custody. None of the children had ever been to a dentist, and they all had serious problems with their teeth when they entered DCS custody. They were also behind on their immunizations when they went with Mother to the shelter in June 2016. Trey was nearly seven years old when the children were removed from Mother's care, yet he had never been to school. The foster mother testified that Trey did not know how to hold a pencil and could not identify letters of the alphabet.

         We find the evidence clearly and convincingly shows that Mother abandoned the children by engaging in conduct prior to her incarceration that exhibited a wanton disregard for her children's welfare. As this Court has said, probation violations, criminal behavior, substance abuse, and the failure to provide properly for the children constitute the sort of conduct that exhibits a wanton disregard for the children's welfare. See In re Audrey S., 182 S.W.3d at 867-68.

         b. Father

         In concluding that DCS proved this ground against Father by clear and ...


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