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In re Joshua S.

Court of Appeals of Tennessee, Knoxville

July 8, 2019

IN RE JOSHUA S.

          Session May 20, 2019

          Appeal from the Juvenile Court for Hamblen County No. J170015 Janice H. Snider, Judge

         Daniel S. ("Father") and Kimberly T. ("Mother") appeal the August 27, 2018 order of the Hamblen County Juvenile Court ("Juvenile Court") terminating their parental rights to the minor child, Joshua S. ("the Child"). Upon petition of the Tennessee Department of Children's Services ("DCS"), the Juvenile Court terminated the parents' rights on the grounds of substantial noncompliance with the permanency plan and failure to manifest an ability and willingness to assume custody or financial responsibility for the Child. The Juvenile Court also terminated Mother's parental rights on the ground of persistent conditions and Father's parental rights on the ground of abandonment by wanton disregard. Upon its determination that grounds existed to terminate the parents' rights to the Child, the Juvenile Court determined that termination of both parents' rights was in the best interest of the Child. Discerning no error, we affirm.

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

          Whitney Bailey, Kingsport, Tennessee, for the appellant, Daniel S.

          Gerald T. Eidson, Rogersville, Tennessee, for the appellant, Kimberly T.

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

          D. Michael Swiney, C.J., delivered the opinion of the court, in which Charles D. Susano, Jr. and Thomas R. Frierson, II, JJ., joined.

          OPINION

          D. MICHAEL SWINEY, CHIEF JUDGE

         Background

         On January 31, 2017, the Juvenile Court entered an order removing the Child from Mother's custody and placing the Child into the custody of DCS, following an altercation that occurred at the home where Mother was residing. At the adjudicatory and dispositional hearing on March 22, 2017, both Mother and Father waived their adjudicatory hearing, stipulating that the Child was dependent and neglected due to Mother's "drug abuse and lack of supervision" and Father's "homelessness, lack of employment, and unavailability." The Juvenile Court ordered that the Child would remain in the legal and physical custody of DCS.

         On March 22, 2017, the Juvenile Court entered an order establishing the Child as "the legitimate child of [Father]." The Child remained in DCS custody until January 31, 2018, when DCS filed its petition to terminate the parental rights of Mother and Father to the Child. The case proceeded to trial on June 27, 2018, in which testimony was proffered from April Hensley, the child's DCS case manager; Mother; and the foster parent.

         During trial, Ms. Hensley testified regarding the development of the permanency plan on February 13, 2017. The permanency plan required that both Mother and Father obtain and maintain stable housing, complete parenting classes, resolve all pending legal issues, refrain from incurring new criminal charges, obtain and maintain a legal source of income, complete a mental health assessment and all recommendations therefrom, and develop an appropriate daycare plan if the Child is placed in their care. Additionally, Father would need to establish paternity of the Child. Mother was also to comply with random drug screens and pill counts and complete an alcohol and drug assessment and follow all recommendations.

         Ms. Hensley testified that it was sometimes difficult to contact Mother because Mother changed her phone number several times. Ms. Hensley testified that Mother lived with the maternal grandmother throughout a majority of the case. Ms. Hensley stated that she had concerns with grandmother's own drug issues. According to Ms. Hensley, the grandmother had tested positive for different substances in the past and had provided her with only an outdated prescription for some of the substances. Ms. Hensley also testified that the initial stabbing incident, which ultimately led to the Child's removal, occurred at the grandmother's home.

         Ms. Hensley testified that she submitted an application for funding to cover the expense of a mental health assessment, alcohol and drug assessment, and parenting assessment for Mother. Those requests were approved for funding to allow Mother to receive services. Mother completed her parenting assessment on July 24, 2017, with Omni Community Health. The assessment recommended that case management assist Mother in establishing stability and finding acceptable housing. The assessment further recommended that Mother complete eight hours of parenting classes, medication management classes, drug education classes with a focus on relapse prevention, and six hours of individual therapy. According to Ms. Hensley, Mother did not complete parenting classes. Ms. Hensley testified that she found Mother a parenting education class with Broken Arrow that Mother could attend for free. Ms. Hensley testified that she assisted Mother in scheduling an appointment with Broken Arrow, but to her knowledge, Mother had not attended the parenting education class.

         Mother also completed her mental health assessment with Covenant Counseling and Consultation Services ("CCS") on January 29, 2018. The assessor observed that Mother appeared to be engaged throughout the interview and answered the questions to the best of her ability. Following the interview, the assessment recommended that Mother complete an alcohol and drug assessment and attend intensive outpatient treatment for "co-occurring treatment regarding addiction, grief and depressive symptoms." The assessment stated that counseling and medication management may assist Mother with her depression and anxiety. In the assessment, the assessor also instructed that the counseling Mother received should address parenting and coping skills and educate Mother regarding community resources.

         During trial, Ms. Hensley was unable to recall the date of Mother's alcohol and drug assessment, but a letter from the services coordinator at New Hope Recovery Center stated that Mother had attended a "pre-screening" appointment on March 6, 2017, which had consisted of a clinical alcohol and drug assessment. The letter further stated that intensive outpatient treatment had been recommended for Mother. According to Ms. Hensley, Mother subsequently attended an intake appointment on March 13, 2017. Ms. Hensley explained that Mother attended intensive outpatient treatment through Health Connect, but Mother's services were discontinued after Mother failed to comply with treatment. Ms. Hensley testified that on July 18, 2017, she asked Mother to go to a rehab facility, but Mother declined, stating that she did not need rehab.

         The record reflects that Mother failed several drug screens from March 2017 to September 2017. On March 24, 2017, Mother tested positive for THC, methamphetamine, amphetamines, and methadone. On April 19, 2017; April 27, 2017; and June 30, 2017, Mother was positive on a drug screen for THC. On June 22, 2017 and September 7, 2017, Mother tested positive for methamphetamine, amphetamines, and THC. Mother failed to comply with a drug screen request from Ms. Hensley on September 14, 2017, admitting that she would fail.

         Mother entered residential treatment at CCS for her alcohol and drug issues on October 5, 2017. The residential treatment Mother received at CCS consisted of "Integrated Services for Substance Abuse and Mental Health Problems." Mother ultimately completed that treatment and was discharged on November 2, 2017. Upon Mother's release from CCS, Mother was instructed to attend parenting classes and aftercare appointments soon after her release from CCS in order to "keep [Mother] focused on her recovery and to get her the therapy and potential medication she needs." The CCS aftercare plan also recommended that Mother attend AA/NA meetings regularly and obtain a sponsor. Ms. Hensley testified that she assisted Mother in setting up the follow-up intensive outpatient treatment at Health Connect America on April 12, 2018. Prior to that time, Ms. Hensley stated that she provided Mother with a list of places where she could attend group therapy and AA/NA meetings prior to getting Mother into her intensive outpatient treatment.

         Ms. Hensley provided Mother with drug screens after her discharge from CCS. Mother tested positive for THC on December 8, 2017. Mother tested positive for amphetamines, methamphetamine, and THC on December 19, 2017. According to Ms. Hensley, Mother stated that she had been sick and had been taking "night-time medication." Specifically, Ms. Hensley testified that Mother informed her that Mother had taken "night-time Nyquil" for two days and "acetaminophen PM" for five days due to "sinuses and a headache." Mother was provided another drug screen on January 29, 2018, at which time she tested positive for amphetamines, methamphetamine, and THC. Ms. Hensley testified that following the January 29, 2018 drug screen, Ms. Hensley had contacted Mother for a drug screen "several times," but she was unable to get Mother to come into the DCS office. The record reflects three occasions when Mother refused a drug screen, occurring on May 22, 2018; May 31, 2018; and June 20, 2018. On May 31, 2018, while Mother was in Hamblen County Jail, Ms. Hensley attempted to obtain a hair follicle drug screen from Mother, but Mother refused.

         In May 2018, Mother was arrested on drug-related charges and found guilty of possession of a schedule six drug and possession of drug paraphernalia. Mother was found to be guilty of those charges and sentenced to eleven months and twenty-nine days probation. Mother last visited the Child on June 20, 2018, and had consistently visited the Child throughout the case. Ms. Hensley acknowledged that the visits between Mother and the Child went well.

         Ms. Hensley testified that she had difficulty contacting Father throughout the case. Father was residing in Florida when the Child was placed into DCS custody. In early March, Father came to Tennessee, and Ms. Hensley met with Father on March 29, 2017. Father was living different places from March to August of 2017. During that time, Ms. Hensley stated that she was mostly trying to locate Father. Ms. Hensley was able to locate Father on August 3, 2017, while he was incarcerated in the Hamblen County Jail. Father pled guilty on August 3, 2017, to possession of a schedule two drug and joyriding. Ms. Hensley later located Father incarcerated again on October 5, 2017, at which time Father entered a guilty plea to disorderly conduct and criminal impersonation. Father subsequently pled guilty on October 18, 2017, to theft.

         Ms. Hensley explained that while Father was incarcerated, she was able to schedule a clinical mental health assessment that included an alcohol and drug component. The assessment was scheduled for November 6, 2017, but Father was released from jail before they could provide the service. Father subsequently was incarcerated in Polk County, Florida from December 25, 2017, through January 30, 2018. He was transferred from Florida back to Hamblen County Jail where he has remained since that time. Ms. Hensley testified that she met with Father two times since the filing of the termination petition on January 31, 2018.

         Ms. Hensley testified that she visited Father in jail on April 19, 2018, in order to get Father to sign paperwork. According to Ms. Hensley, Father refused to sign the paperwork and became aggressive and upset, which resulted in the visit ending prematurely. Ms. Hensley explained that Father was "very aggressive" in the conversations she had with him, and he would inform Ms. Hensley that he did not need her to tell him how the system worked. Ms. Hensley stated that she was unaware Father had an appointed attorney until recently and had not contacted Father's attorney when communication with Father broke down. Ms. Hensley acknowledged that Father had been in foster care as a child.

         Ms. Hensley testified that Father had established paternity of the Child but had not completed any other requirements on his permanency plan. According to Ms. Hensley, Father had visited with the Child three times since the Child had been in DCS custody, and he had not visited since April 20, 2017. Ms. Hensley acknowledged that the visits went well, that Father appeared to have a bond with the Child, and that Father parented appropriately during those visits. Ms. Hensley testified that she did not observe the Child to be scared of Father during visits.

         Ms. Hensley testified that she spoke to Father regarding his housing situation and his job status. Because Father informed her that he had injured his back, Ms. Hensley spoke with him about applying for disability benefits. However, Father did not have a driver's license, birth certificate, or social security card. Ms. Hensley acknowledged that she did not assist Father in obtaining this documentation.

         Father failed three drug tests in March and April 2017 for THC. Father also tested positive for oxycodone during the April 19, 2017 drug test. According to Ms. Hensley, Father had informed her that he had a prescription for the medication but never provided her with proof of that prescription. Ms. Hensley testified that she tried getting Father to go to the MATS shelter at one point but that Father had told her that you had to be clean to get into MATS, and he was not clean. She also stated that she referred Father to other local shelters until they could find something more permanent.

         Ms. Hensley met with Mother on December 8, 2017. Ms. Hensley testified that Mother had informed her of an incident that occurred between Mother and Father when Father kidnapped Mother and drove her to Florida. According to Ms. Hensley, Mother described Father choking her, slamming her head into a window, knocking her out, and driving her to Florida. Mother told Ms. Hensley that Mother and Father had a car accident on the way to Florida, and Mother was able to escape at that time. Mother told her that the incident had happened recently, and she had just returned from Florida on December 8, 2017.

         Ms. Hensley testified that the Child likes his current foster home, where he had resided for nearly six months at the time of trial. According to Ms. Hensley, the foster parents are interested in adopting the Child. Ms. Hensley testified that another option for permanency for the Child was with his maternal grandfather in Florida who also wishes to adopt the Child. According to Ms. Hensley, the process for approval of the grandfather's home had been initiated pursuant to the Interstate Compact on the Placement of Children.

         The Child's current foster mother, A.B. ("Foster Mother"), testified that the Child had been in her home since January 12, 2018. Her husband and another foster child also reside in the home. Foster Mother testified that she would like to adopt the Child if that became an option. According to Foster Mother, the Child had "trauma based issues," for which he was in counseling but that the Child was doing very well overall. When asked to explain the Child's "trauma based issues," Foster Mother explained that the Child is afraid of many things, including violence. According to Foster Mother, the Child told her that he had observed violence in the home with his Mother and Father. The Child had stated to Foster Mother that Mother had been stabbed, which the Juvenile Court admitted only for consideration of the Child's state of mind. The Child had expressed a fear of weapons and of someone breaking into their home and hurting him. Foster Mother testified that the Child also asked whether Father would have access to his weapons when he is released from jail or whether they remained in the shed.

         Mother testified at trial that she had been living with a family friend for two and a half weeks that she met after she was released from rehab. She stated that she had not informed Ms. Hensley of her current living situation because she had only talked briefly with her since she got out of jail on June 12, 2018. Mother testified that she currently is looking for employment and had an interview scheduled for the following day. Mother had paid $10 per week for child support for the Child according to an agreement with the State of Tennessee. She proffered a letter from the Department of Human Services that stated she is current with her child support.

         Mother explained that she refused to comply with the May 31, 2018 hair follicle drug screen while incarcerated because the facility was nasty, her hair is very long, she had been sleeping on a small mat on the floor, her hair had been touching things in the facility, and she was in jail with many other people with drug problems. On the refused May 22, 2018 drug test, Mother claims that she never personally spoke with Ms. Hensley. On June 20, 2018, she refused a drug screen because she had admitted to Ms. Hensley that she would fail it for THC and did not want to get in trouble with probation.

         Mother stated that Ms. Hensley had not provided her with contact information or any literature on Broken Arrow, and if she had, she would have already completed the classes. Mother testified that Ms. Hensley had not provided her any assistance in seeking appropriate housing.

         Following trial, the Juvenile Court entered an order on August 27, 2018, terminating Mother's and Father's parental rights to the Child. The Juvenile Court found that clear and convincing evidence supported termination of Mother's parental rights on the grounds of substantial noncompliance with the permanency plan, persistence of conditions, and failure to manifest an ability and willingness to assume custody or financial responsibility for the Child. The Juvenile Court also found that clear and convincing evidence existed to support the grounds of substantial noncompliance with the permanency plan, failure to manifest an ability and willingness to assume custody or financial responsibility for the Child, and abandonment by wanton disregard against Father. Applying the same clear and convincing standard, the Juvenile Court determined that termination of both parents' rights was in the Child's best interest. Specifically, the Juvenile Court found and held as follows:

FINDINGS OF FACT AND CONCLUSIONS OF LAW
[The Child] was removed from his mother's home into DCS custody on January 31, 2017, following an incident in the mother's home on January 20, 2017, wherein the mother and an uncle were allegedly stabbed by another female in the home who was high on methamphetamine. [The Child] did not witness the stabbing but was present in the home when it occurred. It was further alleged that law enforcement also found another female sleeping in another bedroom along with a plethora of illicit drugs under her bed. The child's mother tested positive for THC, benzodiazepines, methamphetamine and amphetamine. The child's father was not in the home and is believed to have been in Florida at the time.
Following his removal into state custody [the Child] was in placed in a D.C.S. foster home, where he remains to this date.
* * *
GROUND I
SUBSTANTIAL NON-COMPLIANCE WITH PERMANENCY PLAN
(Applies to both parents)
T.C.A. §36-1-113(g)(2) and §37-2-403(a)(2)
* * *
Both parents attended the adjudicatory hearing on March 22, 2017, and stipulated dependency and neglect due to the mother's drug abuse and lack of supervision of her child, and the father's homelessness, unemployment and unavailability to care for his child.
The initial Permanency Plan in this case was created on February 13, 2017, and gave [Mother and Father] until August 13, 2017, to complete the plan steps toward reunification with a parent or a relative placement. This plan required the parents to complete the following steps designed to remedy the conditions for removal and reunify this family:
1. Parents were to complete an alcohol and drug assessment and follow all recommendations of same.
2. Parents were to pass all drug screens and pill counts.
3. Both parents were to obtain/maintain safe and stable housing.
4. Both parents were to complete parenting classes.
5. Parents were to resolve their legal issues in the criminal justice system and refrain from incurring new charges.
6. Parents were to complete a mental health evaluation and follow all recommendations of that evaluation.
7. Parents were to devise and implement an appropriate day care plan if child was returned to them at a time when they were employed.
8. Parents were required to maintain a legal source of income.
9. [Father] was to take all steps to establish paternity of [the Child].
This Court finds that the requirements of the permanency plan for the parents were reasonably related to the grounds for removal and the goal of the parents achieving a stable lifestyle free of criminal activity and substance abuse which would permit re-unification with their child. The Court specifically finds that [DCS] has complied with the requirements of T.C.A. §37-2-403(a)(1)(B)(ii) in this case.
The mother attended the permanency plan ratification hearing on May 15, 2017, and she was provided a copy of the Criteria for Termination of Parental Rights on that date. She voiced no objection to any of the plan steps or responsibilities assigned to them. The father did not attend the permanency hearing and did not sign or approve the permanency plan. He was represented by counsel at the permanency ...

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