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In re C.M.

Court of Appeals of Tennessee, Knoxville

August 14, 2019

In re C.M. et al.

          May 21, 2019 Session

          Appeal from the Juvenile Court for Sevier County Nos. 18-000896, 18-000897 Dwight E. Stokes, Judge

         M.O. (mother) and K.M. (father) appeal from the trial court's order terminating their parental rights with respect to C.M. and M.M. (the children). The court determined that clear and convincing evidence supported multiple grounds for terminating mother and father's parental rights. By the same quantum of proof, the court determined that termination is in the best interest of the children. 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, K.M.

          Elizabeth A. Brady, Sevierville, Tennessee, for the appellant, M.O.

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

          Charles D. Susano, Jr., J., delivered the opinion of the court, in which John W. McClarty and Thomas R. Frierson, II, JJ., joined.

          OPINION

          CHARLES D. SUSANO, JR., JUDGE

         I.

         C.M. and M.M. were born to mother and father out-of-wedlock. C.M. is six years old. He has serious medical conditions, including cerebral palsy and Chiari malformation. Before starting elementary school, C.M. attended Trula Lawson, a specialized preschool where he received occupational, physical, and speech therapy. He still attends physical therapy and speech therapy twice per week. M.M. is three years old. She attends daycare and does not have special needs.

         DCS concedes that mother and father were initially willing and able to parent the children. Father had a steady job. Both parents demonstrated a knowledge and ability to care for C.M.'s special needs. Mother and father also had a loving relationship with the children.

         In 2016, father was diagnosed with stage four testicular cancer. He began chemotherapy and was prescribed pain medications. Father admits that he became addicted to opiates during the course of his treatment. His prescription expired after approximately one year but he continued to use drugs. Mother testified that she began using drugs in order to cope with the stress of having a husband with cancer and a child with special needs. During this time, the parents struggled to pay their bills.

         In February 2017, DCS became involved due to allegations of substance abuse and lack of supervision. The case was closed after parents complied with a non-custodial permanency plan.

         On June 12, 2017, mother was arrested at an Exxon EZ gas station. Witnesses called police after observing that mother appeared to be "on something." Witnesses also said that mother was screaming at the children and smacked the hand of one of the children for picking up a cup. Responding officers found C.M. covered in "throw-up." His diaper was full of urine and fecal matter. Mother claimed she was taking C.M. to the hospital. She denied being in possession of anything illegal. However, police discovered a white powder residue on a red straw in mother's purse. Mother admitted that she used the straw the previous day to snort a "Roxy pill" (Roxicodone). Police charged mother with driving on a revoked license, child neglect and abuse, and possession of drug paraphernalia.[1] Mother tested positive for amphetamines, methamphetamines, opiates, and THC. She also admitted to using "meth" twice in the past week.

         DCS attempted to return the children to father. When DCS asked father to submit to a drug screen, father said he would fail because of medication given to him after a recent emergency room visit. DCS insisted that a drug screen was still necessary. Father then admitted that he would test positive for other drugs. Ultimately, father tested positive for amphetamine (Adderall), benzodiazepine (Xanax), buprenorphine (suboxone), methamphetamine, opiates (Dilaudid and morphine), benzodiazepine (hydrocodone), and THC. On June 14, 2017, the children were taken into DCS custody. Nearly three weeks later, mother was charged with shoplifting from Wal-Mart.

         On August 9, 2017, the children were adjudicated dependent and neglected. A permanency plan was ratified on the same day. This plan was revised twice. Each permanency plan required mother and father to: comply with recommendations regarding legal issues; maintain stable housing, income, and transportation; notify DCS of any changes in circumstances; submit to and pass random drug screens; complete A&D assessments and follow recommendations, and sign releases for DCS. The third permanency plan added adoption as a permanency goal.

         The children were placed in foster care. According to DCS, the foster mother has formed a close bond with the children. Although the foster mother has no official training in helping children with special needs, she works in special education at Trula Lawson (the same specialized preschool that C.M. attended). So far, the foster mother has successfully cared for the children. They have attended all necessary medical appointments. In an effort to reach out to the family, the foster mother has also formed a bond with paternal great-grandparents. The foster mother intends to adopt the children.

         DCS concedes that mother and father complied with the requirements of the permanency plan for the first few months. For example, the parents completed A&D assessments, passed drug screens, completed rehabilitation programs, and regularly visited the children. However, the parents began to backslide. In October 2017, DCS discovered that parents had lost their previous housing. The parents were also more evasive. They failed to consistently communicate with DCS. They also failed to attend drug screens on December 21, 2017, January 10, 2018, and January 23, 2018.

         On October 27, 2017, mother was charged with theft. She admitted to stealing about $487 from Cheddar's (her employer at the time). On January 24, 2018, mother tested positive for opiate, oxycodone, and THC. On February 19, 2018, an arrest warrant was issued for mother. Mother was served with the warrant and arrested the next day. On March 12, 2018, mother pled guilty to violating the terms of her probation. She served forty-four days of a sixty-day sentence.

         In April 2018, mother missed another A&D assessment. On April 12, 2018, she visited the children for the last time. On the same day, mother passed a drug screen. Soon after, mother entered an in-patient treatment program at Comprehensive Community Services (CCS). She completed the program in June 2018.

         On June 27, 2018, DCS requested that mother submit to a drug screen "wherever was appropriate and convenient for her." Mother told DCS she would call back to schedule the drug screen. She never did. On July 3, 2018, DCS contacted mother again. Mother said that she was in Illinois taking care of her ill sister and would return to Tennessee on July 9, 2018. However, mother refused to provide the address of her Tennessee residence. Instead, she encouraged DCS to send mail to her grandmother's home in Dandridge.

         Father admits that he relapsed in January 2018. He began using drugs and stole his grandparents' credit card. In February or March 2018, father enrolled at an in-patient treatment program called Serenity Network. He attended the program for three weeks but discontinued treatment. Father claimed he was not satisfied with the curriculum. He then began in-patient treatment at CCS. He completed the program on June 1, 2018.

         On July 2, 2018, DCS filed a petition to terminate mother and father's parental rights. A few days later, as a result of an unrelated investigation, DCS discovered that mother and father were living in a home with rampant drug abuse. A DCS worker testified that everyone in the home was abusing drugs and there was very limited food. The DCS worker testified that the living conditions were very poor and that there were all kinds of pills and needles in mother and father's room. Both parents denied having children. They also refused drug screens. According to DCS, father admitted to using marijuana and opiates. Mother initially admitted to using marijuana. After investigators found additional evidence of drug use, mother admitted to using Dilaudid and opiates. Father was arrested on charges related to the January 2018 theft of his grandparents' credit card. He served ninety days in jail and was released on October 5, 2018. His sentence carried six years of probation. Mother continued to cancel or reschedule drug screens. She was incarcerated again on August 15, 2018.

         A termination hearing was held on October 25, 2018. At the time of the hearing, mother was still incarcerated but was present at the hearing. Mother was scheduled to be released nearly one month after the hearing. Father participated telephonically. Father testified that he was living with the paternal grandfather in Pennsylvania. Father also testified that his living situation was suitable for mother and children. He claimed that he had a job making seventeen dollars per hour; that he had a valid driver's license; and that he was currently attending an intensive outpatient program.

         A DCS worker testified that mother still needed to: provide proof that she completed her second rehabilitation treatment; complete another A&D assessment; comply with additional drug screens; resume visitation; and resolve legal issues. Father needed to: complete a home study, follow after-care recommendations, finish attending intensive outpatient treatment, demonstrate an ability to maintain sobriety, and resume regular visitation.

         The trial court entered an order terminating mother and father's parental rights on multiple grounds. Both parents timely appealed.

         II.

         The parties raise the following issues on appeal:

Whether the trial court erred in finding clear and convincing evidence to terminate mother and father's parental rights on the ground of substantial noncompliance with the permanency plan.
Whether the trial court erred in finding clear and convincing evidence to terminate mother and father'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 children.
Whether the trial court erred in finding clear and convincing evidence to terminate mother's parental rights on the ground of abandonment by incarcerated parent.
Whether the trial court erred in finding clear and convincing evidence to terminate mother's parental rights on the ground of abandonment ...

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