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In re K.S.

Court of Appeals of Tennessee, Knoxville

August 2, 2019

In re K.S.

          Assigned on Briefs June 3, 2019

          Appeal from the Juvenile Court for Knox County No. 171528 Timothy E. Irwin, Judge

         The Department of Children's Services filed a petition to terminate the parental rights of S.M. (mother) with respect to her child, K.S.[1] The trial court determined that clear and convincing evidence supported multiple grounds for terminating mother's parental rights. By the same quantum of proof, the court determined that termination is in the best interest of the child. We affirm.

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

          Gregory E. Bennett, Seymour, Tennessee, for the appellant, S.M.

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

          Charles D. Susano, Jr., J., delivered the opinion of the court, in which Andy D. Bennett and Carma Dennis McGee, JJ., joined.

          OPINION

          CHARLES D. SUSANO, JR., JUDGE

         I.

         On October 9, 2018, DCS filed a petition to terminate mother's parental rights. Mother did not respond to the petition. Consequently, DCS filed a motion for a default judgment. On November 27, 2018, the trial court held a hearing on DCS's motion. Mother did not attend. The court heard testimony from the child's DCS case manager and the child's foster mother. The child's guardian ad litem was also present. After the hearing, the court entered a default judgment terminating mother's parental rights. We restate the court's findings of fact verbatim, with paragraph numbering omitted:

[K.S.] was born out of wedlock to [S.M.] and [M.S.] on November 2, 2017, in Knox County, Tennessee. The temporary custody of [K.S.] was awarded to the State of Tennessee, Department of Children's Services, on November 6, 201[7], by order of the Juvenile Court of Knox County, Tennessee; he has been in foster care continuously since that date. The termination petition was filed against Respondent on October 9, 2018.
This child was removed from Respondent and the father due to their drug use during Respondent's pregnancy. Respondent learned she was pregnant in March of 2017 via a home pregnancy test. She and the father were living in Florence, Alabama at the time. She attended a single prenatal appointment each month in May, June, July, and August, 2017. Respondent told the Department's investigator that her doctor in Alabama spoke to her about the risks of her continued opiate use and told her that these risks included Neonatal Abstinence Syndrome, Sudden Infant Death Syndrome, and birth defects.
At Respondent's May, 2017 prenatal appointment, which took place on May 11, 2017, she tested positive for marijuana, benzodiazepine, and oxycodone. She admitted to using marijuana a week prior. In June, 2017, Respondent was thirty minutes late for her prenatal appointment. She appeared with a black eye. She explained that her boyfriend got drunk the night before and threw her phone at her and this caused the injury. Respondent said the father was supposed to come get her and bring her to her appointment, but he didn't show up because he didn't want medical personnel to see her face. The father later appeared at the doctor's office, asking to see Respondent, but left when he wasn't given access to her. She stayed with him.
By July 2017, Respondent told staff at her OB/GYN's office that she was moving to Huntsville, Alabama with Respondent and in August, 2017 they were residing there together. In September of 2017, Respondent and the father moved to Knoxville after being kicked out of the father's mother's home. During the same month, Respondent failed a drug screen for opiates and THC at her new OB/GYN's office. Following the child's birth, Respondent admitted to taking Norco 10 mg daily during her pregnancy but then altered her admission to say she did not take them every day but that she "just popped them." Respondent has two older children, neither of whom is in her legal or physical custody. Custody of this child was given to the Department on November 6, 2017.
The initial permanency plan for this child was developed at a Child & Family Team Meeting on November 28, 2017, with Respondent's presence and participation. Among other things, the plan required that she:
a. complete an alcohol and drug assessment, openly and honestly disclose h[er] history of substance use, follow any resulting recommendations until successfully completed, refrain from associating with drug users or dealers, and pass random drug screens to demonstrate sobriety;
b. complete a mental health assessment and follow resulting recommendations; and
c. obtain and maintain safe, suitable housing free from environmental hazards, domestic violence, drug abuse or other risks to the child.
She was also expected to visit regularly, to have a stable source of legal income and pay child support, to be law-abiding, and to maintain contact with the child's case manager.
Respondent initially told the child's case manager that she had insurance and would use this to obtain her assessments. In December of 2017, Respondent informed the child's case manager that she could not afford to complete a mental health assessment or alcohol and drug assessment. The child's case manager requested funding for Respondent's assessments on December 13, 2017 and received approval. On January 6, 2018, the child's case manager discovered that Respondent and the father failed to appear for their assessments and did not return attempted phone calls from Omni Community Health. The child's case manager asked Respondent about the assessments and reminded her of their importance on January 25, 2018 and February 2, 2018.
Respondent finally completed a drug and alcohol assessment and mental health assessment at Omni Community Health on February 24, 2018. She admitted to the assessor that she has used marijuana consistently since age fifteen and has used opiates and depressants off and on since age nineteen. Respondent described periods when she did not use opiates or depressants followed by periods of relapse, either because substances were available to her or because she had an emotional need for the drugs. In Alabama, she attended IOP, but did not complete it. She admitted she last used opiates and depressants two to three days prior to the assessment and marijuana and alcohol the day before the assessment.
Respondent also discussed a history of mental health issues: she was diagnosed with depression as a teen and prescribed Selexa. Respondent said that she still has symptoms of depression and feels panic and lack of control in situations. She acknowledged her emotional issues are a factor in her drug dependency and that she has a substance abuse disorder. At the conclusion of the assessment, the assessor recommended that Respondent attend individual therapy to address emotional needs, relapse prevention, and increased selfesteem [sic]. Medication management was also recommended. If continued substance use occurs, the assessor opined, Respondent's admission into an IOP program would be the next logical step. The assessor noted that Respondent expressed willingness and openness to treatment and a desire to attend therapy and get on appropriate medication. However, Respondent also appeared very focused on ensuring she and the father of the child could do everything together.
Respondent reported to her assessor that she had insurance through her father and would check on coverage for therapeutic services, but more than seven months later, she has not even begun the recommended services. Her drug use continues. On April 5, 2018, Respondent tested positive for THC on a hair follicle drug screen. She was positive for heroin and morphine on a standard drug screen given on May 10, 2018, the same substances that the father tested positive for on his next drug screen. Respondent never responded to a request for a drug screen on August 23, 2018.
Respondent's current relationship with the father and her living situation are unclear. She told the child's case manager that she and the child's father rented an apartment with the assistance of his family, but most recently reported that she plans to break up with him because he is abusive. Respondent's communication with the child's case manager and her visitation with the child became sporadic in the months before the termination petition was filed. She did not visit in August or September, 2018, but resumed visitation after she was served with the termination petition.

         The court determined that these findings of fact clearly and convincingly supported six grounds for terminating mother's parental rights. By the same quantum of proof, the court determined that termination of mother's rights was in the best interest of the child. Mother timely appealed.

         II.

         Mother raises the following issues, which we have slightly restated:

Whether the trial court erred by finding clear and convincing evidence to terminate mother's parental rights on the ground of abandonment by failure to support.
Whether the trial court erred by finding clear and convincing evidence to terminate mother's parental rights on the ground of abandonment by failure to provide a suitable home.
Whether the trial court erred by finding clear and convincing evidence to terminate mother's parental rights on the ground of persistent conditions.
Whether the trial court erred by finding clear and convincing evidence to terminate mother's parental rights on the ground of severe child abuse.
Whether the trial court erred by finding clear and convincing evidence to terminate mother's parental rights on the ground of substantial noncompliance with the permanency plan.
Whether the trial court erred by finding clear and convincing evidence to terminate mother's parental rights on the ground of failure to manifest an ability and willingness to personally assume legal and physical custody or financial responsibility of the child.
Whether the trial court erred by finding clear and convincing evidence that termination of mother's parental rights is in the best interest of the child.

         III.

         A parent has a fundamental right, based on both the federal and state constitutions, to the care, custody, and control of his or her child. Stanley v. Ill., 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). Although this right is fundamental, it is not absolute. The State may interfere with a parent's rights in certain circumstances. In re Angela E., 303 S.W.3d at 250. Our legislature has listed the grounds upon which termination proceedings may be brought. Tenn. Code Ann. § 36-1-113(g) (Supp. 2018) (amended 2019). Because termination proceedings are statutory, In re Angela E., 303 S.W.3d at 250; Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004), a ...


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