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In re Josiah T.

Court of Appeals of Tennessee, Knoxville

October 2, 2019

In re JOSIAH T.

          Assigned on Briefs August 1, 2019

          Appeal from the Juvenile Court for Knox County No. 39481 Timothy E. Irwin, Judge

         A mother appeals the termination of her parental rights to her child. Before trial, the mother moved to dismiss the petition to terminate her parental rights for failure to join the father of the child as a necessary party. The juvenile court denied the motion. And after a trial, the court found six statutory grounds for termination and that termination of the mother's parental rights was in the child's best interest. We discern no error in the trial court's denial of the motion to dismiss. But we conclude that the evidence was less than clear and convincing as to one of the statutory grounds relied on by the trial court for the termination of the mother's parental rights. Still, the record contains clear and convincing evidence to support the remaining five grounds for termination and that termination is in the child's best interest. So we affirm the termination of the mother's parental rights.

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

          Anna East Corcoran, Knoxville, Tennessee, for the appellant, Jennifer T.

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

          W. Neal McBrayer, J., delivered the opinion of the court, in which Charles D. Susano, Jr., J., and J. Steven Stafford, P.J., W.S., joined.

          OPINION

          W. NEAL McBRAYER, JUDGE

         I.

         A.

         In 2014, Jennifer T. ("Mother") gave birth to Josiah T. His birth certificate listed no father. Josiah's father was later identified as Jean A. ("Father"). When Josiah was almost two years old, the Tennessee Department of Children's Services ("DCS") received a report that Mother had given birth to a baby girl, Neveah, and had admitted to hospital personnel that she abused suboxone while pregnant.

         Mother was already known to DCS. Before Josiah's birth, DCS had removed two older children from Mother's custody based on concerns about Mother's substance abuse and possible medical neglect. The older children had been in the temporary custody of the maternal grandmother ("Grandmother") since 2009.

         Mother and Josiah lived with Neveah's father, Robert D. After interviewing Mother and Robert D., DCS petitioned the Juvenile Court of Knox County, Tennessee, to declare Josiah and Neveah dependent and neglected. DCS also asked that Grandmother be awarded temporary custody of the children. The court found probable cause to believe the children were dependent and neglected and issued an immediate protective custody order. The order awarded temporary physical custody to Grandmother and required that any visitation by the parents be supervised.

         Nine months later, DCS received a report of a domestic disturbance at the home Mother shared with Robert D. Reportedly, when the maternal grandfather arrived to pick up Josiah and Neveah from an unsupervised visit, Robert D. threatened him with a tire iron. When interviewing Mother a few days later, the DCS case manager found Josiah and Neveah in the care of Mother and Robert D. without supervision. During the interview, Mother admitted that she abused drugs and lacked stable housing. Mother tested positive that day for THC and suboxone.

         Because Grandmother was not supervising visitation as ordered by the court, DCS again petitioned to adjudicate Josiah and Neveah dependent and neglected. But this time DCS sought physical custody. On April 25, 2017, Josiah and Neveah entered foster care. Shortly thereafter, Mother's older children, who were also in Grandmother's custody, entered foster care.

         On May 22, 2017, DCS, with Mother's participation, developed an initial permanency plan with the twin goals of return to parent and exit custody with relative. Mother tested positive that day for amphetamines, buprenorphine, and methamphetamine. In addition to Mother's obvious substance abuse issues, the plan addressed Mother's mental health, parenting skills, history of domestic violence, and lack of sufficient resources to provide for the children.

         Under the plan, Mother's main responsibilities included:

• Resolving pending criminal charges and not incurring new charges;
• Passing random drug screens;
• Completing an alcohol and drug assessment and following all recommendations from the assessment;
• Taking medication as prescribed;
• Complying with random pill counts;
• Visiting children regularly as scheduled;
• Paying child support;
• Completing a series of parenting classes;
• Completing a mental health assessment and following any recommendations from the assessment;
• Addressing anger management and domestic violence issues through individual therapy or classes;
• Obtaining and maintaining a legal source of income;
• Obtaining and maintaining safe and stable housing;
• Maintaining contact with DCS;
• Signing necessary releases; and
• Providing verification of the completion of her responsibilities.

DCS revised the plan twice, but Mother's responsibilities remained the same.

         Following a dependency and neglect hearing on July 21, 2017, the court found, by clear and convincing evidence, that Mother had abused suboxone when she knew she was pregnant with Neveah.[1] By the same quantum of proof, the court found that Neveah was a victim of severe abuse, as defined in Tennessee Code Annotated § 37-1-102(b)(22)(A) (Supp. 2019). The court also adjudicated Mother's four children dependent and neglected based on, among other things, the severe abuse finding and Mother's substance abuse.

         DCS referred Mother to the necessary service providers to schedule a dual assessment, but she waited almost six months to complete the assessment. Then she failed to follow the resulting recommendations. The service provider had recommended that Mother enroll in medication management and an intensive outpatient program for both substance abuse and mental health. Mother failed another drug screen after completing the assessment. Although the plan required Mother to complete a second assessment under such a circumstance, she did not.

         At this point, Mother was unemployed and living off and on with various relatives. In late February 2018, Mother belatedly enrolled in an intensive outpatient therapy program. But she was discharged a few months later for poor attendance.

         On March 30, the children began a trial home placement with Grandmother. But the placement was suspended in May after DCS discovered that Grandmother was allowing Mother unsupervised visitation with the children. DCS removed exit custody with relative as a goal in the permanency plan. The new goals were return to parent or adoption.

         In June, fourteen months after the children entered foster care, Mother again enrolled in the recommended drug and mental health treatment program. Despite failing multiple drug screens in June and July, Mother completed the program on August 13, 2018. She also began working for a daily employment company and paying child support. And she completed parenting classes.

         Sadly, her sobriety was short lived. On September 5, she tested positive for THC, amphetamines, and methamphetamines. She admitted to the DCS family services worker that she had relapsed again. DCS assisted her with enrolling in another drug treatment program at a halfway house. But Mother stayed ...


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