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In re Khloe B.

Court of Appeals of Tennessee, Knoxville

August 26, 2019

IN RE KHLOE B. ET AL.

          Session July 19, 2019

          Appeal from the Chancery Court for Washington County No. 18-AD-0043 John C. Rambo, Chancellor

         Kristin B. ("Mother") appeals the judgment of the Washington County Chancery Court ("Trial Court") terminating her parental rights to the children, Khloe B. and Madison B. ("the Children"). Upon petition of Matthew B. ("Father") and Amanda B. ("Stepmother") (collectively, "Petitioners"), the Trial Court found that Mother had abandoned the Children by her actions exhibiting wanton disregard for the Children's welfare and that termination of Mother's parental rights was in the Children's best interest. The Trial Court, therefore, terminated Mother's parental rights to the Children. Discerning no error, we affirm.

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

          Michelle Caggiano, Johnson City, Tennessee, for the appellant, Kristin B. [1]

          Rachel Ratliff, Johnson City, Tennessee, for the appellees, Matthew B. and Amanda B.

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

          OPINION

          D. MICHAEL SWINEY, CHIEF JUDGE.

         Background

         This action commenced on January 26, 2018 when Petitioners filed a petition with the Trial Court seeking to terminate the parental rights of Mother to the Children. In their petition to terminate Mother's parental rights, Petitioners allege as grounds that Mother abandoned the Children by failing to visit or financially support the Children during the four months prior to the petition's filing and that Mother had failed to manifest an ability and willingness to assume custody or financial responsibility for the Children. Petitioners further allege that termination of Mother's parental rights is in the Children's best interest.

         In January 2018, a notice to incarcerated parent was filed with the Trial Court reflecting a certificate of service to Mother at the Washington County Detention Center in Jonesborough, Tennessee. Upon Mother's request, an attorney was appointed to represent her in this matter. Mother subsequently filed an answer in March 2018, denying both that statutory grounds existed to terminate Mother's parental rights and that termination was in the Children's best interest.

         A trial was conducted on September 4 and 18, 2018. At the beginning of trial during opening statements, Mother's attorney stated: "We've prepared to proceed in regards to the Wanton Disregard because mother was incarcerated, she would stipulate to the fact that she was incarcerated in October of 2017." Later during the trial, Mother's attorney informed the Trial Court that Mother was not objecting to wanton disregard being tried as a ground for the termination of Mother's parental rights.

         During trial, Pamela Hensley, Khloe's kindergarten teacher, testified that Stepmother was present during most field trips. According to Ms. Hensley, Stepmother was "very active volunteering in [her] classroom and coming on field trips." Ms. Hensley testified Mother did not attend any of the field trips that parents were allowed to attend, and she never saw Mother at the school for anything. Ms. Hensley further testified that Mother had emailed her one time in late September 2015 but she could not respond due to a court order at the time. Ms. Hensley explained that the administration in the principal's office had informed her that Mother had no legal right to receive information from the school regarding the child. According to Ms. Hensley, Mother never attended any parent-teacher conferences during Khloe's kindergarten year.

         Amanda Baker, Khloe's pre-kindergarten teacher, testified that she was familiar with Father and Stepmother but that she only saw Mother twice at school during the time Khloe was in her class. Ms. Baker clarified that Mother had come with Father through the "car rider drop off line" with Father on two mornings toward the beginning of the year. Ms. Baker testified that Mother had not attended any events that the parents were allowed to attend, but Stepmother attended these events after she became involved with Father. Ms. Baker testified that she also taught Madison in pre-kindergarten from August 2016 to May 2017.

         Father testified that he and Mother were married from March 2012 until December 2014. According to Father, when Madison was born, she had to stay in the Neonatal Intensive Care Unit because she was born with drugs in her system and had to be placed on morphine to wean her off the drugs. Father explained that Madison remained in the hospital for three weeks before she was discharged into the care of Mother and Father.

         According to Father's testimony, Mother and Father began having problems in their marriage after Madison was born. Father explained that he knew Mother had used drugs in the past but was unaware she was still using them. Father testified that Mother had gone to Woodridge several times, once or twice before Madison was born and a couple times after Madison was born. Father stated that Mother also attended a month program at Willow Ridge and programs at Magnolia Ridge and Frontier Health. Father testified that prior to Madison's birth, he observed Mother using narcotics and that he tried to get her help by sending her to Woodridge and Frontier Health. Father further testified that months after Madison was born, Mother would go stay at her uncle's home for periods of time extending from a week through a month at a time before returning home.

         Father testified concerning Mother's criminal activity and presented court, probation, and jail records to the Trial Court. The court records reflect that in April 2013, Mother pled guilty to a charge of theft under $500 and was placed on supervised probation. Mother was subsequently arrested in August 2013 for aggravated assault against Father's sister. On the basis of the aggravated assault charge, Mother was charged with a violation of her probation stemming from the theft charge. In October 2013, Mother pled guilty to a violation of probation and was sentenced to time served. Court records reflect that Mother ultimately pled guilty to the aggravated assault charge in September 2014 and received a sentence of three years supervised probation.

         In April 2014, Mother was arrested and charged with domestic assault, but the charge was subsequently dismissed. Father testified that a few days after the domestic assault charge, Mother had threatened to kill herself, picked up a knife, and put it to her wrist. Father testified that he contacted law enforcement, and Mother was arrested at that time. He testified that while he was not fearful that Mother was going to harm him, he thought she was going to hurt herself. That charge of domestic assault was dismissed.

         In June 2014, Mother was arrested and charged with driving under the influence, failure to exercise due care, and violation of implied consent. According to Father, Mother was arrested for the driving under the influence charge after she wrecked a Jeep. Father told her "[he] was done." Mother pled guilty to driving under the influence and the other charges were dismissed.

         Father testified that he filed for divorce from Mother in August 2014. He and Mother entered into an agreed permanent parenting plan on August 28, 2014, while Mother was incarcerated. The parenting plan allowed Mother and Father equal parenting time. Father testified that the maternal grandmother ("Grandmother") assisted him in filling out the paperwork. He stated that Grandmother told him equal custody would be the "best case scenario." According to Father, he thought that he could believe what Grandmother told him because "she worked for a lawyer." The divorce between Mother and Father was finalized on December 17, 2014.

         The agreed parenting plan allowed Mother and Father to have alternating weeks of parenting time with the Children. Father testified that although Mother and Father supposedly shared equal parenting time, Mother never had the Children for an entire week at a time. Mother would have the Children on the weekends at Grandmother's home, and Father would have them during the week. For Mother's parenting time on weekends, Grandmother would pick up the Children from Father's home every weekend. According to Father, Mother usually was not with Grandmother when she picked up the Children.

         Father testified that he provided financially for the Children's needs, including clothing, food, babysitting, and school expenses, and that Mother did not provide any money to him for the Children. Father worked third shift until about a year prior to the September 2018 trial when he began working on day shift. When Father worked at night during his parenting time, Grandmother would care for the Children at night, and Father would pick up the Children from Grandmother's home in the morning after work. According to Father, Mother sometimes was at Grandmother's home when he picked up the Children, but she was not present most of the time.

         Stepmother and Father had begun dating in February 2015. After Father and Stepmother moved in together in early March 2015, Stepmother began watching the Children at night while Father worked. Stepmother assisted Father with taking the Children to school. Father testified that Mother never assisted in taking Khloe to school and never attended any school events for which he was present.

         In September 2015, Father hired an attorney and filed a "Motion to Modify Permanent Parenting Plan and for Ex Parte Restraining Order." Father and Mother subsequently attended mediation and agreed to a temporary parenting schedule, which decreased Mother's visitation from equal parenting time to weekend visitation. During this time, Mother received visitation with the Children at Grandmother's home each weekend except the third weekend of the month. In April 2016, Mother's contact with the Children was restricted to supervised visitation every other weekend with Grandmother supervising Mother's visitation. The Children also were to have no contact with Mother's paramour, D.H. Father acknowledged that before Mother went to jail, she would visit with the Children sometimes but not every scheduled time.

         The records presented to the Trial Court reflect that in June 2016, Mother's probation officer, Bethany Huening, filed an affidavit with the court alleging that Mother had violated the rules of her probation. Specifically, the allegations in the affidavit were that Mother had (1) admitted to the use of buprenorphine without a prescription on two occasions, (2) failed to complete treatment at Willow Ridge, and (3) failed to attend intensive outpatient classes at Watauga Behavioral Health. Mother was arrested on the violation of probation charge on July 5, 2016. Mother remained incarcerated through the filing of the petition until her release in March 2018. While incarcerated in February 2017, Mother failed a drug screen for amphetamines. She also failed a drug screen in September 2017 for buprenorphine while incarcerated.

         Stepmother testified to her involvement with the Children during trial. Stepmother stated that she moved in with Father at the beginning of March 2015 and that they were married at the end of that month. According to Stepmother, she assisted Khloe in getting ready for school in the mornings, dropped Khloe off at school, and picked her up from school in the afternoons. She also took care of Madison during the day while Khloe was at school and Father was sleeping.

         According to Stepmother, she attended a parent-teacher conference in March 2015 with Khloe's teacher, a field trip to The Bright's Zoo in May 2015, Honors Day, pre-K graduation for Khloe in May 2015, and a Valentine's Day party in 2016. Stepmother and Father had participated in an egg hunt and picnic at Khloe's school and a parent-teacher conference in March 2015. They also had attended registration day when Khloe began kindergarten in August 2015 and a Dr. Seuss field trip with the school. Father, Stepmother, and Grandmother were present for a Christmas program at school in December 2015 and for Khloe's kindergarten graduation in May 2016. According to Stepmother, Mother was not present at any of these events.

         Stepmother testified that on Halloween in 2015, Mother was supposed to have the Children, but Mother was not present during that visit. Stepmother explained that Grandmother took the Children trick-or-treating without Mother. Stepmother stated that she does not recall Mother ever taking the Children to school or picking them up. According to Stepmother, Mother would be present once or twice at pickups immediately after a visitation order was put in place but that she had not been present most of the time. Stepmother testified that she had only seen her "a handful of times" in the four years she had been involved with Father and the Children. Stepmother further testified that Mother had not paid financial support for the Children since she had been with Father.

         Stepmother explained that she had potty-trained Madison because she was still in diapers when Stepmother became involved in helping care for the Children. Madison also did not speak very well when Stepmother entered the picture. Stepmother testified that she worked with Madison to help her talk more and understand her better. Stepmother and Father also have two other children in the home, twin sons, who love the Children. Stepmother expressed that she and the Children have a strong bond and that they refer to her as "Mom."

         Mother testified during trial and requested that the Trial Court decline to terminate her parental rights to the Children. Mother stated that after the Children were born, she had gotten up with them every night, fed them, clothed them, and bathed them. Mother testified that she stayed home with the Children while Father worked. During that time, Mother testified that she often would accompany Father when he took Khloe to school or would stay home with Madison if she was still asleep.

         According to Mother, that began to change when she and Father separated. Mother began working at Burger King, did not have much money or a driver's license, and she had moved out of the home. Mother testified that it was difficult to talk to Father after they separated, especially once Stepmother became involved. According to Mother, she was supposed to receive equal parenting time and had tried to see the Children, but she had difficulty communicating with Father.

         According to Mother, she visited with the Children between March 4, 2016 through July 4, 2016, every other weekend at Grandmother's home. Mother explained that she lived with Grandmother so she was present at the visits unless she had to work. Mother testified that she did not accompany Grandmother when she picked up and dropped off the Children due to the tension between the parents. According to Mother, she would see the Children while they were at Grandmother's home. Mother testified that while she was incarcerated, she sent two letters to Khloe and spoke with the Children via telephone. Mother explained that the agreed order restricting her time with the Children to only supervised visitation on weekends was based mainly on the individual she was dating at the time, D.H.

         Mother testified that she had not been ordered to pay child support to Father and had financially supported the Children when they visited her by purchasing clothing, toys, and groceries. Mother testified that prior to her incarceration, she had a great relationship with the Children and saw them as much as she could.

         Mother testified that she never was notified of any school activities so that she could attend them. When asked by the Trial Court why she did not attend the events with Grandmother when Grandmother was in attendance, Mother stated that she was not aware of the events until the last minute and that she would not attend events because of the tension between Mother, Father, and Stepmother. Mother testified that the main reason she did not attend Khloe's kindergarten graduation was because of the tension between Mother, Father, and Stepmother.

         Mother acknowledged that Madison was born drug addicted but stated that the doctors informed her that the Prozac she was taking "had a lot to do with it." Mother stated that she took Lortabs for her back during her pregnancy. Mother acknowledged failing a drug screen in 2015 but stated that she stopped using after she failed that drug screen.

         Mother testified that she was incarcerated from July 5, 2016, through March 27, 2018. Mother stated that she had been arrested for violating her probation after she had failed drug screens. Mother stated that she had taken Suboxone "every now and then" from January to April 2016. According to Mother, she was "trying to get off pain pills." Mother acknowledged using Suboxone consistently and failing three drug screens in the months leading up to her July 2016 incarceration. Mother stated that she did not have a prescription for the Suboxone due to her inability to afford to go to a Suboxone ...


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