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In re Adrian M.-M.

Court of Appeals of Tennessee, Jackson

October 30, 2019

IN RE ADRIAN M.-M., ET AL.

          Assigned on Briefs October 1, 2019

          Appeal from the Chancery Court for Obion County No. 33512 W. Michael Maloan, Chancellor

         This appeal concerns termination of parental rights. The Tennessee Department of Children's Services ("DCS") filed a petition in the Chancery Court for Obion County ("the Trial Court") seeking to terminate the parental rights of Emily M. M.-A. ("Mother") to her minor children Adrian, Maribel, Alisiana, and Elena ("the Children").[1] The Children had been exposed to methamphetamine in Mother's care. After trial, the Trial Court entered an order terminating Mother's parental rights to the Children on the grounds of abandonment by failure to provide a suitable home; abandonment by failure to visit; substantial noncompliance with the permanency plan; severe child abuse; and, being sentenced to more than two years' imprisonment for child abuse. The Trial Court also found that termination of Mother's parental rights is in the Children's best interest. On appeal, Mother argues that she has made improvements such that termination of her parental rights is not in the Children's best interest. First, apart from the grounds of failure to visit and failure to provide a suitable home, which we reverse, we affirm the grounds for termination found by the Trial Court. Regarding best interest, we find that Mother has no meaningful relationship with the Children and that her purported improvements are insufficient. The evidence is clear and convincing that termination of Mother's parental rights is in the Children's best interest. We affirm, in part, and, reverse, in part, the judgment of the Trial Court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed, in Part, and Reversed, in Part; Case Remanded

          Cristy C. Cooper, Martin, Tennessee, for the appellant, Emily M. M.-A.

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

          D. Michael Swiney, C.J., delivered the opinion of the court, in which Frank G. Clement, Jr., P.J., M.S. and Kenny W. Armstrong, J., joined.

          OPINION

          D. MICHAEL SWINEY, CHIEF JUDGE

         Background

         In February 2017, the Children were removed from Mother's custody on the basis of domestic violence and drug abuse in the home.[2] Mother and the Children tested positive for methamphetamine. Afterwards, Mother was charged with aggravated child abuse. In October 2017, Mother pled guilty to four counts of attempted aggravated child abuse for which she received a sentence of eight years for each count running concurrently. The sentence was suspended, and Mother was placed on supervised probation. In November 2017, the Juvenile Court for Obion County ("the Juvenile Court") found the Children dependent and neglected and victims of severe child abuse. Mother moved to Ohio, and the Children remained in Tennessee with a foster family.

         Three permanency plans were fashioned for Mother with her participation over the course of the case. Taken together, Mother's responsibilities under the plans included: pass consecutive drug screens; participate in any classes offered in jail; maintain contact with DCS; update DCS of any changes of contact information within 24 hours; complete a parenting assessment and follow all recommendations; complete a mental health intake and an A & D assessment; and, address domestic violence issues through counseling.

         In May 2018, DCS filed a petition in the Trial Court seeking to terminate Mother's parental rights to the Children. DCS alleged multiple grounds for termination: abandonment by failure to provide a suitable home; abandonment by failure to visit; abandonment by failure to support; persistent conditions; substantial noncompliance with the permanency plan; severe child abuse; and, being sentenced to more than two years' imprisonment for child abuse. This case was tried in April 2019. At the beginning of trial, DCS stated that it would not be proceeding with the ground of failure to support.

         Two witnesses testified at trial. First to testify was Brian Hill ("Hill"), a family service worker for DCS. Hill was the Children's case manager. Hill testified that the Children were removed from Mother's home in February 2017. Mother and the Children tested positive for methamphetamine. Mother, who was incarcerated from March 31, 2017 to May 4, 2017, went into rehab at Buffalo Valley for 28 days. After her time in rehab, Mother moved to Ohio where she has friends and family. Hill testified that it was explained to Mother that her move to Ohio would make DCS's task of assisting her more difficult. Hill, who took over the case in May of 2018, stated that Mother had two different addresses on his watch, and for a period she was out of touch with him. Hill testified that no ICPC home study had been conducted on Mother because she moved so frequently. Regarding visitation, Hill stated that Mother had visited the Children six times for a total of twelve hours in the course of two years. When asked if Mother had completed all of her permanency plan responsibilities, Hill testified: "No, ma'am, because she failed to complete a parenting assessment, she failed to complete mental health intake with the A and D assessment and to address domestic violence and counseling." Regarding DCS's efforts, Hill stated:

Q. What reasonable efforts has the Department provided to the mother from the time of the removal until this termination was filed?
A. Well, the mother entered rehab through our criminal court and since she didn't sign a release, the department was not able to work with her or provide any additional services for the first 28 days. However, since that time, the department has offered to set up parenting. We have attempted to schedule a parenting assessment and pay for it. We have offered to assist in finding housing here in Tennessee, to pay for drug screens, to conduct an ICPC home study on her home in Ohio. We have offered gas cards and hotels for the mother to use to come down and visit the children. We have communicated with service providers in Ohio to explain the services mother needed to complete on the permanency plan. We have offered regular monthly visitation for the mother.
Q. Since the children have been removed from the mother, she has not corrected the situation to make herself a suitable home to care for the children; has she?
A. No, ma'am. Her moving to Ohio directly afterwards impeded her ability to work services with the department.

         With respect to the Children's foster family, Hill testified:

Q. Are the children currently in an adoptive placement?
A. They are.
Q. How long have the children been in this adoptive placement?
A. They have been there since coming into custody.
Q. And 2 of the minor children were extremely young when they came into custody, 1 and 1/2 years old, 6 weeks old. So would it be fair to say the foster home is the only home they have known at this point in their lives?
A. Yes, ma'am.
Q. Would it be detrimental to the minor children for there to be a change in placement?
A. Yes, ma'am.
Q. Do the children have a meaningful relationship with their mother?
A. The oldest two children, Adrian and Maribel, I would say they love their mother. They are excited whenever she does come visit with then but I wouldn't characterize it as a meaningful relationship. I would say they are more so bonded with one another and the foster mom.
Q. So you would say the children have a bond with the foster parents?
A. Yes. And the foster family.

         Hill concluded his direct examination by testifying that Mother had made no lasting changes to her lifestyle or conduct and that she had failed to demonstrate an ability to provide a safe and stable home for the Children.

         On cross-examination, Hill stated it was possible that Mother's case could have been referred to Ohio, but that he never implemented such a referral. Hill testified, however, that "[w]e have worked with the mother and spoken to service providers there in Ohio." Hill could not identify the providers' names but stated that they could be found in the file. Hill stated further that he was unaware of any friends or relatives Mother had in Tennessee. Hill acknowledged that Mother had passed three or four drug screens and attended a rehab program.

         Continuing his testimony, when asked if Mother brought any gifts on her visits, Hill stated: "No, ma'am. And the visit that I supervised I had an issue with her being on the phone facetiming." Regarding whether he had ever spoken with Mother about seeking services in Ohio, Hill stated that "she told me on several occasions that she was starting" but "whenever I would ask her the name of where she was going and if she signed paperwork for me to get that information, she was not able to provide that name." Hill testified that on each visit to Tennessee, Mother was provided gas cards and hotel rooms.

         Next and last to testify was Mother, who participated by telephone from Ohio. Mother stated that she had successfully completed inpatient rehab at Buffalo Valley and had a follow-up A & D outpatient treatment. Mother testified: "I have been doing the process, I have been receiving A and D, counseling 101, and it is through an organization here in Ohio called Anazo. I have mentioned it many of times to my case worker and I did sign a medical, like a report, through Anazo." Mother stated that she lived with her mother, son, and older brother. Mother testified that her mother's address was always effective as a means of reaching her. When asked if she had provided DCS with proof of her A & D, parenting classes, and mental health counseling, Mother stated "[n]o" because "[t]hey don't give me paperwork."

         Continuing her testimony, Mother stated that she worked at a factory prior to her pregnancy. Mother testified that she then had a "bowel/intestine rupture" in her stomach, so she cannot sit or travel. Mother stated that she could return to work after her pregnancy. Regarding contact with the Children, Mother stated that she spoke to them by phone at least every Sunday. Mother described her relationship with the Children as "good." Mother testified that traveling from Ohio to Tennessee and back was difficult. Mother stated that she brought the Children gifts, such as shoes, when she visited them.

         Concluding her testimony, Mother offered a host of excuses for why she did not complete her services, hold a job for long, maintain a stable residence, or visit the Children more often:

Q. Have you completed any of those services that you state you are working on?
A. No. I still do that.
Q. So for a period of 2 years, you have been working on these services but you haven't completed a single one?
A. Yes, because my probation department said I needed to continue to do that, that's why. There is not a date for completion. I have to continue to do them.
Q. If the department had contacted the facility that you claim that you are receiving these services at and they say you missed 10 scheduled appointments, would that be accurate?
A. Yes.
Q. Why are you missing those appointments?
A. I was in the hospital. I just got out. That is why I am not there. I have been in the hospital, I moved, and you know I started working. Since my kids have been gone, I have had 3 different jobs. So I am working and had to reschedule my appointments because I am trying to work.
Q. Where have you worked in the time period since your children have been removed?
A. I have worked at healthcare, I was working dietary in there and I got fired because -- I had just got hired in there, I wasn't even working like 2 weeks there. Then I had to come to Court in Tennessee. They told me they had to let me go because I had just started. So I ended up leaving there so they didn't fire me. I worked at Autoplex, that is where I was working at when I went to the hospital and had emergency surgery. I got put on - because I had to lift a 70 pound box that was --
Q. Right. Where was your third job?
A. Then I worked at Taco Bell. I worked there for awhile. Then I was working --
Q. So you have had 4 jobs?
A. Yes.
Q. Did you earn minimum wage at all of ...

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