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In re Nicholas C.

Court of Appeals of Tennessee, Knoxville

July 15, 2019


          Assigned on Briefs June 3, 2019

          Appeal from the Juvenile Court for Cocke County No. CU-05441 Brad Lewis Davidson, Judge

         The trial court terminated the parental rights of Mother and Father to their four children on the grounds of abandonment by failure to visit, substantial noncompliance with the permanency plan, and failure to manifest the ability and willingness to assume custody of the children. On appeal, we conclude that there is clear and convincing evidence to support all three grounds as well as the trial court's best interest determination. We, therefore, affirm the trial court's decision.

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

          Brett Arthur Cole, Seymour, Tennessee, for the appellant, Jason B.C.

          Ryan Thomas Logue, Newport, Tennessee, for the appellant, Carol L.G.

          Herbert H. Slatery, III, Attorney General and Reporter, and Amber L. Seymour, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services.

          Andy D. Bennett, J., delivered the opinion of the Court, in which John W. McClarty and Carma D. McGee, JJ., joined.



         Factual and Procedural Background

         Carol L.G. ("Mother") and Jason B.C. ("Father") (collectively, "Parents") are the parents of four children: Nicholas, born in 2005; Tiffany, born in 2008; Skylar, born in 2010; and Airies, born in 2012. The Department of Children's Services ("DCS" or "the Department") first became involved with the family in May 2015 after seven-year-old Tiffany drew a picture at school of male genitalia and made comments about the drawing suggesting sexual abuse. The Department's investigation revealed that the entire family was living in a motel room with two queen-size beds. The children were removed from Parents' custody and, on December 3, 2015, Parents waived their rights to an adjudicatory hearing and the juvenile court found the children to be dependent and neglected. The trial court's order stated that Parents "may have supervised, therapeutic visitation at the discretion of the therapist."

         A previous petition to terminate the parental rights of Mother and Father was denied by the trial court, but the children remained in DCS custody. The Department met on December 19, 2017, to develop a new permanency plan to address the issues that Mother and Father needed to resolve. Neither parent attended this meeting.[1] Mother's attorney attended the meeting, but Father's attorney did not. The goals of the permanency plan were the return of the children to their parents or adoption.[2] The plan was ratified by the trial court on February 15, 2018.

         The Department filed the current petition to terminate Mother's and Father's parental rights to Nicholas, Tiffany, Skylar, and Airies on August 24, 2018. The petition asserts three grounds for termination applicable to both parents: abandonment by failure to visit pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(i); substantial noncompliance with the permanency plan pursuant to Tenn. Code Ann. §§ 36-1-113(g)(2) and 37-2-403(a)(2); and failure to manifest the ability to parent pursuant to Tenn. Code Ann. § 36-1-113(g)(14).

         The hearing

         The trial court held a hearing on January 8, 2019. The first witness to testify for the Department was Robert Rouleau, the children's case manager for the entire three and a half years they had been in DCS custody. He stated that, during the four-month period prior to the filing of the termination petition (April 24 through August 23, 2018), Parents did not visit the children or contact him for visitation. Neither parent had visited the children at any point during their time in DCS custody, which began in 2015. Mr. Rouleau stated that Parents' visitation was at the discretion of their children's therapists, and that no therapist had recommended that the children have contact with Mother or Father. The children had seen several therapists.

         Mr. Rouleau testified that, between April 24 and August 23, 2018, neither Mother nor Father contacted him at all. He stated that he had received no voice mails from either of them, and that he may have received one text message. Mother and Father had not come to the DCS office to see Mr. Rouleau. Mr. Rouleau testified that his last contact with Parents was at the previous termination hearing in October 2017. Thereafter, on December 14, 2017, he texted them about the permanency plan meeting scheduled for December 19, 2017. Mr. Rouleau then testified:

I got a text from [Father] on the 20th that said that from now on to go through their attorneys for any meetings and contact, because he was going to the Justice Department to sue the crooked DCS and the Court System in Newport. Something like that.

         After that text, Mr. Rouleau stated, he avoided contacting Parents directly. He further testified:

Just to back that up, Ms. Lawson, who was the attorney for [Mother] back then, had contacted me probably a week or two after that and told me that the parents-that the mother told her she did not know about the [permanency plan] meeting. Which I then told her that I texted all three phone numbers that I had for her and that I was told not to contact them anymore except through their attorneys. And Ms. Lawson did tell me that she said that [Mother] did tell her that they did want me to go to the attorneys from now on. So at that point I did not contact the parents.

         Asked about the steps Parents were to take to gain visitation, Mr. Rouleau stated that they were to engage with the children's therapists and perhaps eventually participate in family therapy if and when the therapist felt it was appropriate. Parents never informed him that they had contacted any of the therapists. Mr. Rouleau provided their attorneys with the therapists' contact information, but he did not know if the attorneys contacted Mother and Father to give them the information.

         Mr. Rouleau stated that he provided Parents' attorneys with copies of the permanency plan. To the best of his knowledge, Parents had not completed the requirements of the permanency plan. Mother had not inquired about vocational rehabilitation, completed a parenting assessment, maintained contact with DCS twice a month, developed a plan to address the children's sexually reactive behaviors, paid child support, made arrangements for continuing therapy or inquired about the children's therapy needs, engaged in the children's therapeutic process, or provided proof of a driver's license or car insurance. Mother had signed releases. At the time of the permanency plan, Parents stated that they had housing, but Mr. Rouleau did not know if they had stable housing at the time of trial. He thought Mother had been "getting a check" and assumed that she continued to receive that money. As to Father, Mr. Rouleau testified that he had not maintained contact with DCS twice a month, developed a safety plan regarding the children's sexually reactive behavior, paid child support, made arrangements for continuing therapy, participated in medication management, participated in therapy to address his victim status, engaged in the children's therapeutic process, or provided proof of a driver's license or car insurance. Father was also receiving a check, so he had some income. Parents had a vehicle at one point, but Mr. Rouleau did not know if they had it at the time of trial.

         As to the third ground for termination, failure to manifest an ability to parent, Mr. Rouleau testified that he became concerned about Parents' housing situation when he saw a Go Fund Me page posted in November 2018 asking for help with rent. Parents were also seen on a street corner asking for help. Prior to the first termination hearing (in October 2017), Parents had given Mr. Rouleau gifts for the children, but they had not done so since that hearing. Mr. Rouleau was not aware of any cards Parents sent for the children.

         At the time of the hearing, Nicholas was in a residential facility, and DCS was looking for a foster home. Tiffany had just been placed in a pre-adoptive home with Youth Villages. Airies was in a pre-adoptive Smoky Mountain Children's home, and Skylar had recently been moved to a pre-adoptive home through Smoky Mountain. Asked why the children were placed separately, Mr. Rouleau explained:

In the beginning, they were all four together. Tiffany had some sexual reactive behavior with Airies. So at that point we separated Tiffany from the three boys.
A little while after that probably-probably a couple of months, Skylar had some sexual reactive activity with Airies. So at that point, Airies was separated from Skylar and Nicholas.
Nicholas and Skylar did stay together for a while until Nicholas was having some issues in the foster home and that's when he went to residential placement.

         The Department had approved the adoption of the four children separately. It would not be safe for them to be in the same environment without a safety plan, including separate bedrooms and "probably alarms on the doors to hear if anybody is getting out in the middle of the night." Mr. Rouleau stated: "They would have to be watched almost round-the-clock when together."

         Mr. Rouleau opined that it was in the children's best interest that Mother's and Father's parental rights be terminated and that the children have no further contact with Parents.

         On cross-examination, Father's attorney questioned Mr. Rouleau about the text messages he sent on December 14, 2017, to the three telephone numbers he had for Parents to notify them of the permanency plan meeting on December 19, 2017. Mr. Rouleau acknowledged that he did not receive any response from Parents. When asked if he had inadvertently hung up on anyone, Mr. Rouleau recalled about two weeks prior to the hearing when he was on the phone with Nicholas's residential facility and the facility requested a number for Parents. He remembered clicking onto one of Parents' names to open the contact and initiating a call by mistake, which he quickly ended. Maybe thirty minutes later, he received a call from the number he had inadvertently called, presumably because they saw a call from Mr. Rouleau. He did not answer because of the previous request to communicate through their attorneys.

         Father's attorney stated that he did not have a record of receiving a copy of the permanency plan until the ratification hearing in February 2018. At that hearing, Father's and Mother's attorneys objected to the plan's goal of adoption.

         When questioned by the guardian ad litem, Mr. Rouleau testified that the children's behavior and school performance had improved since they had been in DCS custody and had been treated with therapy and medication.

         The next witness was Ashley Chitwood, a mental health therapist through Omni Community Mental Health. She testified that she was a licensed therapist in the State of Tennessee and had worked as a therapist at Omni for seven and a half years. Ms. Chitwood stated that she provided therapy for the three male children in this case, Skylar, Nicholas, and Airies. Their initial assessment was completed in July of 2015. Ms. Chitwood had worked with Skylar consistently since 2015 until his recent move to LaFollette, which was out of her service area. The last time she met with Skylar was in the fall of 2018. Ms. Chitwood began seeing Nicholas when he was admitted into the program in 2015 and continued seeing him into 2016; after that, he was successfully discharged. Once Nicholas returned in 2017, Ms. Chitwood was not his therapy provider. Shortly thereafter, Nicholas was admitted to a residential facility. With respect to Airies, Ms. Chitwood stated that the child was "not very verbal" when admitted in 2015 and did not cooperate with therapy, "mostly due to his age," she thought. She saw Airies in 2015 and 2016, but his file was closed in 2016 "because he wasn't cooperative." Airies also began receiving medication management services from another company because Omni did not treat children under the age of five for medication management. Ms. Chitwood further testified that she saw Airies and Skylar for family therapy in 2018.

         Ms. Chitwood recalled writing a letter to the court in 2016 with her recommendations concerning visitation. She described the substance of her letter as follows:

I stated that due to the amount of time that had lapsed since visiting with parents and continuing to work towards stability with the kids, I didn't think it would be appropriate for the children to have visits. But I did add a clause in here that if the Court deemed it appropriate that it be completed in a therapeutic setting.

         Ms. Chitwood stated that she had no contact with either parent during the three years she was involved with the case. She had never received any messages from them. Ms. Chitwood further stated that she had not been provided with any contact information for Mother or Father, so she was unable to initiate contact with them.

         As to Skylar, Ms. Chitwood testified that she never reached a point where she thought it would be appropriate for Parents to have visitation. Skylar did not remember his parents. When asked what she would have needed to see before she thought visitation was appropriate, Ms. Chitwood stated:

A. Throughout the course of treatment with Skylar, he struggled managing his emotions behaviorally, just complying with general rules and expectations, coping with transitions. He had a very difficult time anytime something was changed. I would have needed to see that Skylar was going to maintain stability, which he has now. But it's been-we've been working with him for three years. And he is in a better place now but-and then I would also hope that the parents were going to be consistent and do the visits, however they were scheduled, however that was going to occur. Q. Okay. If the parents [had] tried to contact you early on and requested information about being involved in his therapy, how would you have responded to that?
A. I mean, I would have answered any questions they would have had and been cooperative. I was told that they may be calling me a couple of times last year. I was told that I should be hearing from them. And I was told when I first admitted them in 2015 that I may hear from them. But I didn't.

         Ms. Chitwood was likewise asked to opine about Airies and whether it was appropriate for him to have visitation with Parents. She stated:

A. Airies still hasn't-he still has a great deal of work left to do as far as behavior and emotion regulation. He still has outbursts. He's still receiving therapy weekly. He just completed a more intensive program with us because of his behavior and just helping him regulate himself and not be so impulsive. He does not remember his parents at all. When I ask him about them, the people that he said was his parents, was his current foster mom and Derek, foster mom's fiancé.
Q. Okay. If the parents had been in contact with you and shown consistency, do you think it might have been possible at some point to have them involved in therapy?
A. It would have for him, yes. But because he was so young when he came into custody-it would have been better early on for him. Because he doesn't have a lot of memories of them now. . . . .
Q. Okay. Did any of their attorneys that have represented them over the years get in contact with you?
A. Not that I'm aware of.

         When cross-examined by the guardian ad litem, Ms. Chitwood testified that Skylar and Airies both had diagnoses of attention deficit hyperactivity disorder (ADHD) and were both taking medication. The boys' treatment plans focused on anger, defiance, and aggression in the home. When the boys first came into DCS custody, their therapists addressed problems with food hoarding. She stated: "Most of what has been worked on has been just following the rules, listening, not being impulsive, thinking about things before they do them." Ms. Chitwood further testified that all three boys exhibited outbursts of anger. Skylar and Nicholas "scratch[ed] themselves when they were angry if they were placed in timeout or something of that nature." The children also engaged in sexually reactive behaviors. Nicholas was diagnosed with autism.

         Ms. Chitwood observed a change in Nicholas's behavior during the time she saw him. In the beginning, he was "very shy, extremely anxious" and "had a lot of nightmares." Medication for anxiety helped him stabilize, but he began to regress and act out behaviorally in 2017-cursing, yelling, refusing to obey his teachers, fighting with Skylar. He was subsequently placed in a residential facility. Skylar had improved over time; he was better able to regulate his emotions and control his impulses. He could function at school and comply with the rules, whereas in the past he would engage in risky behavior or blurt things out in the classroom.

         Alexis Lewis, a former Omni therapist, testified that she worked with Tiffany for about seven months in 2017. Tiffany had just been released from residential care. She was "up and down in her behaviors." She and Ms. Lewis were working on developing her coping skills. Tiffany "started to connect more with her foster parents, care more about the rules and being more empathetic with others." Ms. Lewis communicated with Tiffany's foster parents, never with Mother or Father. She stated that, at the permanency plan meeting in December 2017, she provided her contact information to give to Parents so that she could meet with them to assess whether family therapy would be appropriate for Tiffany, but Parents never contacted her.

         On cross-examination, Ms. Lewis stated that Tiffany was having a hard time coping in the home she was in at that time:

[S]he had been through many foster care situations and she just couldn't cope in general. I don't think it was specific to the home. Just specific to the nature of her symptoms. She couldn't self-soothe. She couldn't cope with her own mood. And not getting her way, she couldn't calm herself down, things like that. . . . .
Oh, gosh. She was defiant. She was-she had-again, like I can't speak to all of the things, because it has been a year. But she had behavioral issues at school. . . . She had boundary issues, physical boundary issues, not respecting people's personal space, too comfortable with people, a lot of things. She had some sexually reactive behaviors. Things like that.

         The next witness, Melissa Smith, a resource coordinator at Omni, worked with Tiffany from May 2017 through October 2018. Ms. Smith attended the permanency plan meeting on December 19, 2017, and she recalled that she and Mr. Rouleau were going to try to contact Parents but that "the parents had requested for all communication to go through their attorneys." Ms. Smith attempted to contact Mother and Father at the three telephone numbers provided to her by Mr. Rouleau. According to her testimony, "it was disconnected whenever I attempted to contact them." Ms. Smith was told "that the parents would be given the therapists['] phone numbers as well as my phone number from their attorneys and that they could contact us." Ms. Smith testified that she contacted all three of Parents' phone numbers between the December 19, 2017 meeting and the first of January 2018, but she never received a call back from them. She was not able to leave a message at any of the numbers (because they were disconnected).

         Ms. Smith stated that the only contact she had with Parents was at an IEP (individualized education plan) meeting at the first of the 2017 school year. Mother called into the meeting, and Ms. Smith heard her voice over the phone. Ms. Smith's contact with Tiffany ended in October 2018 when the child went to a new foster home.

         The Department called Rebekah Crass, who was Tiffany's foster mother for a time as well as her mentor when she was in a residential facility. Tiffany came to Ms. Crass's home in June of 2016 for about a month and a half and then moved to intensive residential treatment for nine months. Tiffany returned to the Crass home from April 2017 through August 2018, and she then went to another foster home. Ms. Crass explained that, initially, Tiffany exhibited "a lot of issues with emotional dysregulation, physical aggression, some sexual hyperreactivity, defiance." According to Ms. Crass, Tiffany showed classic signs of trauma and abuse, including bed-wetting and night terrors. Ultimately, Tiffany's physical aggression led the team to decide that she needed a higher level of care.

         When Tiffany returned to the Crass home after residential treatment, Ms. Crass testified, a lot of the same behaviors resurfaced, despite all of the work that had been done during residential treatment. Although Tiffany improved in some areas, Ms. Crass found her physical aggression and emotional dysregulation especially challenging when Tiffany was in her home. During Tiffany's time in residential treatment, the Crass family had adopted a son, and Ms. Crass found it difficult to maintain the safety of both Tiffany and her son. The Department and the Crass family tried therapy, brain mapping, and other interventions, but the team ultimately decided to remove Tiffany from the Crass home in August 2018.

         Asked if she ever spoke to Mother or Father about Tiffany's condition, Ms. Crass stated that there was a "no contact" order under which she was asked not to have contact with Tiffany's parents. She stated that Mother and Father never attempted to contact her and that Mr. Rouleau had never asked for an update regarding Tiffany to provide to Mother and Father.

         Ms. Crass stated that she had had contact with Tiffany since her transfer to another foster home. Tiffany spent Christmas with the Crass family and displayed "some typical defiant behaviors." Ms. Crass testified that, in light of Tiffany's history of "extensive trauma and abuse," caution was necessary in placing her to prevent "unsafe incidents with another child." When Tiffany was living with Ms. Crass, there was an extensive safety plan in place. Ms. Crass described the plan as follows:

A. [Tiffany's] behavioral plan at school required someone to pick her up from the time we dropped her off and to carry-not to carry her-but to escort her to every class. She had to use a separate bathroom than other kids, escorted by a teacher. She would have to be escorted to the bus stop and she had a specific bus seat in which she would have to sit until she arrived at our home. And that was due to previous behaviors that she had at other schools.
Q. And in the home, could you can [sic] explain what that safety plan was? A. Uh-huh. We were not allowed to have any other long-term placements with her. We were never called for other placements. Because she just-it is not an option to have any other foster children with her. The exception for our son was because he was in the process of being adopted by us. . . . And he also slept in our room.
There were not to be any other children in her room, in the bathroom with her. She was not allowed to have sleepovers with other children or have any overnight contact with kids or adults. She couldn't stay in our bedroom either. She had to have a safe place to go whenever she was having her physical aggression incidents.

         On cross-examination, Ms. Crass stated that Tiffany sometimes lied, like any other child. She did not think that it was possible that Tiffany lied to her in the disclosures she made about sexual abuse. Tiffany "never recanted any of those disclosures."

         Ashley Stanley, the foster mother for Airies for the preceding three years, testified that, when he first came into her home, Airies was three years old. He was disruptive and exhibited "a lot of anxiety issues" and anger issues. According to Ms. Stanley, Airies "was just not listening, basically." During the three years that Airies had been in her home, the child had been in therapy and was now on medication-Vyvanse for ADHD; Buspirone HCL for anxiety; Remeron for sleep; and L-Methfolate Forte for low folic acid to help him metabolize the medications. Ms. Stanley had stopped working outside the home in order to better care for Airies. She intended to adopt the child.

         During the time that Airies was in her home, Ms. Stanley had not had any contact with Mother or Father. She understood that there was a "no contact" order in place. She stayed in contact with Airies's therapist about his progress. Upon questioning by the guardian ad litem, Ms. Stanley testified that Airies had calmed and become more focused since he started on medication. She described him as "a totally different child than from day one." In school, Airies was "doing a lot better now that we have the right medication for him."

         Mother was the next witness called by the Department, and she admitted that she had not visited her children in three and a half years. She was not incarcerated or hospitalized during that time period. Mother stated that she attended court hearings and that she attended DCS meetings if she knew about them. She testified that, if she did not attend the meeting on December 19, 2017, she did not know about it. When asked if she knew about the meeting on December 19, 2017, Mother stated: "I don't know." Mother identified the phone number she was using on December 19, 2017, and stated that the number was one that Mr. Rouleau had for her and that she would have received a text message sent to that number. Mother also identified Father's number, but denied having a third number. According to Mother, both her number and Father's number were active as of December 19, 2017, and would not have been disconnected at that time:

Q. Okay. But neither one of them were tore up in December of 2017?
A. No. But it could be fixed. All you got to do is to switch batteries from my phone and recharge it, and still it pulls up on either phone.
Q. Okay. Do you all ever share numbers? Would [Father] ever text someone from your phone?
A. Yeah. If his phone wouldn't work. While his was charging, yeah.

         Asked if she had contact with her attorney, Chris Lawson, in December 2017, Mother stated that she did not know Ms. Lawson's number and was waiting for her to call Mother. (Mother later obtained Ms. Lawson's telephone number.) Mother further testified that the only time Ms. Lawson called her was when Mother told her that she and Father did not want to talk directly to DCS. Mother affirmed that Ms. Lawson ...

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