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In re Draven K.

Court of Appeals of Tennessee, Knoxville

January 7, 2020

IN RE DRAVEN K.

          Assigned on Briefs December 2, 2019

          Appeal from the Juvenile Court for Knox County No. 611354 Timothy E. Irwin, Judge

         This is a termination of parental rights case. Mother/Appellant appeals the trial court's termination of her parental rights to the minor child on the grounds of: (1) abandonment by willful failure to visit and abandonment by failure to provide a suitable home, Tenn. Code Ann. § 36-1-113(g)(1), §§ 36-1-102(1)(A)(i) (ii); (2) persistence of the conditions that led to the child's removal, Tenn. Code Ann. § 36-1-113(g)(3); (3) failure to substantially comply with the reasonable requirements of the permanency plan, Tenn. Code Ann. § 36-1-113(g)(2); and (4) failure to manifest an ability and willingness to assume custody or financial responsibility for the child, Tenn. Code Ann. § 36-1-113(g)(14). Mother also appeals the trial court's determination that termination of her parental rights is in the child's best interest. Because the record does not contain an adjudicatory order of dependency and neglect, we reverse the trial court's termination of Mother's parental rights on the ground of persistence of conditions. We affirm the trial court's termination of Mother's parental rights on all other grounds and on its finding that termination of Mother's rights is in the child's best interest.

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

          Anna East Corcoran, Knoxville, Tennessee, for the appellant, Amanda S. [1]

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

          Kenny Armstrong, J., delivered the opinion of the court, in which Thomas R. Frierson, II, and W. Neal McBrayer, JJ., joined.

          OPINION

          KENNY ARMSTRONG, JUDGE

         I. Background

         Draven K. was born, in November 2012, to Appellant Amanda S. ("Mother") and Charles K. ("Father"), [2] who were never married. On or about April 19, 2016, Appellee Tennessee Department of Children's Services ("DCS") received a report of harm alleging that Draven was unsupervised, neglected, and exposed to drug use in Mother's home. The report alleged that police had responded to Mother's home where Father had overdosed on prescription medication, which he had obtained illegally. The report further alleged that Mother was aware of Father's drug use. Mother's home was reportedly unsafe and unsanitary. Law enforcement removed Draven from the home and placed her with Marilyn B., a non-relative.

         On April 20, 2016, Child Protective Services ("CPS") visited Mother's home. The CPS investigator reported that Mother had cleaned the house since the previous night. Mother informed the CPS investigator that Father did not reside at the home. CPS referred Mother for a mental health assessment, and Draven returned to Mother's home on or about April 21, 2016.

         On May 25, 2016, DCS received a second referral alleging that Mother's home was again unsafe and unsanitary. The report further indicated that Mother and Father had engaged in fighting and yelling, and Father was observed chasing Mother around the yard. On May 26, 2016, CPS again visited Mother's home. Both parents were present and reported that there was no drug use in the home. However, Father submitted to a drug test, which was positive for buprenorphine. He then reported that he had taken Suboxone, which he obtained "off the street." Mother also submitted to a drug test, which was negative. The CPS agent observed that the home was extremely messy-the kitchen sink was full of dirty dishes; there was "black grime" on the washer and dryer; trash was strewn about the house; there was no food in the house; the sheetrock in Devon's room had crumbled leaving debris on the floor and bed; and there were no sheets on the child's bed. Mother reported that she had not completed the mental health assessment requested by CPS following the initial home visit in April 2016. CPS completed an immediate protection agreement with the parents and placed Draven with Marilyn B., a non-relative.

         On or about June 6, 2016, Marilyn B. filed a petition seeking a temporary restraining order against Mother and Father. The Juvenile Court of Knox County ('trial court") granted the petition and transferred temporary physical custody of Draven to Marilyn B. The trial court prohibited Mother and Father from having contact with the child or interfering with Marilyn B.'s care and custody. On June 10, 2016, DCS filed a motion to intervene and for temporary custody. Therein, DCS alleged that Draven was "dependent and neglected . . . because of substance abuse issues, environmental neglect and lack of supervision." On August 31, 2016, the trial court entered a "Bench Order- Custody to DCS Dependency & Neglect," wherein it found that "there is probable cause to believe the child is dependent and neglected." The trial court's finding was based on the parents': (1) unresolved alcohol, drug, and mental health issues; (2) environmental neglect; and (3) lack of supervision. The trial court noted that Marilyn B. was no longer available as a placement resource for the child and granted temporary custody to DCS. Draven was placed in foster care on August 31, 2016, where she has remained since that time. An attorney was appointed to represent Mother, and a guardian ad litem was appointed for Draven.

         On September 22, 2016, DCS entered into a permanency plan with Mother. DCS and Mother developed subsequent permanency plans, on April 7, 2017 and November 7, 2017, but Mother's requirements did not change. The trial court ratified all of these plans, under which Mother was required to: (1) visit Draven regularly; (2) complete a mental health assessment and follow all recommendations until successful completion; (3) complete parenting classes to learn the necessary skills to be a stable parent and demonstrate retention of those skills during visitation; (4) maintain stable and adequate housing free from any environmental hazards; (5) maintain contact and cooperate with DCS; (6) maintain a legal source of income sufficient to meet her own needs and those of the child; (7) submit to random drug screens; and (8) have a reliable means of transportation. According to affidavits of reasonable effort filed by DCS, it assisted Mother with the foregoing tasks by: (1) assigning a case worker to maintain contact with Mother and engage her in the process of compliance with the plans; (2) offering to schedule and pay for Mother's mental health assessment; (3) providing Mother with bus passes; and (4) facilitating therapeutic visitations between Mother and Draven.

         Mother subsequently completed a mental health assessment. The assessment recommended that Mother complete six months of individual therapy. Mother began therapy in April 2017, but she stopped attending after only a few sessions. Mother completed parenting classes. Mother submitted to drug screens, which were all negative. In addition, Mother cooperated with DCS, maintained contact with Ms. Julianna Denes, the DCS case worker, and attended court hearings.

         On November 29, 2016, the trial court held a review hearing and continued custody with DCS. On December 14, 2016, the trial court entered an order, wherein it found that DCS had made reasonable efforts to assist Mother. The trial court found that Mother had made progress toward resolving the issues that led to Draven's removal from her custody, but that she still "needs to find housing; complete parenting classes; and get engaged in recommend[ations] [from her] mental health [evaluation]."

         On June 27, 2017, the trial court entered an order following a status hearing. Therein, the trial court noted that DCS continued to make reasonable efforts to assist Mother, including assistance with housing. Although the trial court noted Mother's progress, it concluded that she still was not compliant with her mental health recommendations and that she was also not compliant with therapeutic visitation. However, based on Mother's efforts, she progressed to unsupervised visitation in late 2017 with the possibility of a trial home placement.

         Initially, Mother's unsupervised visits went well; however, in January 2018, Mother became involved with Jonathan L. DCS instructed Mother that Jonathan L. was not to be around Draven during visitation. Nonetheless, on January 7, 2018, during a visit with Mother, Draven was involved in a motor vehicle accident. Although the child was not injured in the accident, she witnessed Jonathan L. engaged in a fight with the driver of the other vehicle. Draven disclosed the event to Ms. Julianna Denes, the DCS caseworker, who then questioned Mother. Mother admitted that Jonathan L. had fought with the other driver and had his "eyebrow split open" when the other driver slammed Jonathan L.'s head against a car. Mother admitted that she had taken Draven with her "to the hospital with Mr. [L.] to have his eyebrow glued shut." Following this event, DCS ceased Draven's unsupervised visits with Mother.

         Ms. Denes testified that, at a child and family team meeting in January 2018, Mother's behavior was odd. Ms. Denes stated that Mother "kind of spaced out, and while we were discussing the seriousness of the events, she started talking about getting roses the day before . . . and completely kind of went-off topic." Ms. Denes stated that Mother showed no remorse over the incident with Mr. L. and never acknowledged that her behavior was inappropriate. Nonetheless, following the January 2018 meeting, Mother was granted supervised visitation with Draven. However, based on Mother's odd behavior at the January meeting, DCS required her to obtain a full psychological exam. DCS scheduled the evaluation for February 27, 2018, but Mother failed to appear. Mother rescheduled the evaluation for April 13, 2018. The April examination recommended psychotherapy and medication management for Mother's mental health issues. On or about June 25, 2018, Megan Farmer replaced Ms. Denes as Draven's DCS case manager.

         In June 2018, Mother contacted Ms. Farmer and requested that DCS suspend her visitation because she was allegedly starting the required therapy, and it was too difficult for her to attend therapy and visit with Draven. In July 2018, Mother still had not begun therapy. Ms. Farmer contacted Mother and asked if she wanted to resume visits. Mother stated that she did not, but asked Ms. Farmer to provide her bus passes. Ms. Farmer informed Mother that DCS would not provide bus passes so long as Mother was not attending therapy and was not visiting the child. Thereafter, Mother requested visitation. Although DCS arranged at least eight visits, the record shows that Mother only attended three.

         On November 9, 2018, DCS filed its petition to terminate Mother's parental rights. The trial court heard the petition on April 3, 2019. Although Mother was present at the hearing, she did not testify. By order of April 25, 2019, the trial court terminated Mother's parental rights on the grounds of: (1) abandonment by failure to visit; (2) abandonment by failure to provide a suitable home; (3) substantial noncompliance with the permanency plans; (4) persistence of the conditions that led to the child's removal; and (5) failure to manifest an ability and willingness to assume custody. The trial court also found that termination of Mother's parental rights is in the child's best interest. Mother appeals.

         II. Issues

         There are two dispositive issues, which we state as follows:

1.Whether there is clear and convincing evidence to support any of the grounds the trial court relied on in terminating Mother's parental rights?
2. If so, whether there is clear and convincing evidence to support the trial court's determination that termination of Mother's parental rights is in the Child's best interest?

         III. Standard of Review

         Under both the United States and Tennessee Constitutions, a parent has a fundamental right to the care, custody, and control of his or her child. Stanley v. Illinois, 405 U.S. 645, 651 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn. 1996). Thus, the state may interfere with parental rights only when a compelling interest exists. Nash-Putnam, 921 S.W.2d at 174-75 (citing Santosky v. Kramer, 455 U.S. 745 (1982)). Our termination statutes identify "those situations in which the state's interest in the welfare of a child justifies interference with a parent's constitutional rights by setting forth grounds on which termination proceedings can be brought." In re W.B., Nos. M2004-00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005) (citing Tenn. Code Ann. § 36-1-113(g)). A person seeking to terminate parental rights must prove both the existence of one of the statutory grounds for termination and that termination is in the child's best interest. Tenn. Code Ann. § 36-1-113(c); In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

         Because of the fundamental nature of the parent's rights and the grave consequences of the termination of those rights, courts must require a higher standard of proof in deciding termination cases. Santosky, 455 U.S. at 769. Accordingly, both the grounds for termination and that termination of parental rights is in the child's best interest must be established by clear and convincing evidence. Tenn. Code Ann. § 36-3-113(c)(1); In re Valentine, 79 S.W.3d at 546. Clear and convincing evidence "establishes that the truth of the facts asserted is highly probable . . . and eliminates any serious or substantial doubt about the correctness of the conclusions drawn from the evidence." In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004), perm. app. denied (Tenn. July 12, 2004). Such evidence "produces in a fact-finder's mind a firm belief or conviction regarding the truth of the facts sought to be established." Id.

         In light of the heightened standard of proof in termination of parental rights cases, a reviewing court must modify the customary standard of review in Tennessee Rule of Appellate Procedure 13(d). On appeal, we review the trial court's findings of fact "de novo on the record, with a presumption of correctness of the findings, unless the preponderance of the evidence is otherwise." In re Taylor B.W., 397 S.W.3d 105, 112 (Tenn. 2013); Tenn. R. App. P. 13(d). We must then make our "own determination regarding whether the facts, either as found by the trial court or as supported by a preponderance of the evidence, provide clear and convincing evidence that supports all the elements of the termination claim." In re Bernard T., 319 S.W.3d 586, 596-97 (Tenn. 2010). We review the trial court's conclusions of law de novo with no presumption of correctness. In re J.C.D., 254 S.W.3d 432, 439 (Tenn. Ct. App. 2007).

         IV. Grounds for Termination of Mother's Parental Rights

         Although only one ground must be proven by clear and convincing evidence in order to terminate a parent's rights, the Tennessee Supreme Court has instructed this Court to review every ground relied upon by the trial court to terminate parental rights in order to prevent "unnecessary remands of cases." In re Angela E., 303 S.W.3d 240, 251 n.14 (Tenn. 2010). Accordingly, we will review all of the foregoing grounds.

         A. Abandonment by Failure to Visit

         The trial court terminated Mother's parental rights on the ground of abandonment by failure to visit. In pertinent part, Tennessee Code Annotated section 36-1-113(g) provides:

(g) Initiation of termination of parental or guardianship rights may be based upon any of the grounds listed in this subsection (g). The following grounds are cumulative and nonexclusive, so that listing conditions, acts or omissions in one ground does not prevent them from coming within another ground:
(1) Abandonment by the parent or guardian, as defined in § 36-1-102, has occurred . . .

Tenn. Code Ann. § 36-1-113(g)(1). Tennessee Code Annotated section 36-1-102 defines "abandonment," in relevant part, as follows:

(i) For a period of four (4) consecutive months immediately preceding the filing of a proceeding, pleading, petition, or any amended petition to terminate the parental rights of the parent or parents or the guardian or guardians of the child who is the subject of the petition for termination of parental rights or adoption, that the parent or parents or the guardian or guardians . . . have failed to visit . . . the child;

Tenn. Code Ann. § 36-1-102(1)(A)(i). Here, the petition to terminate Appellant's parental rights was filed on November 9, 2018; therefore, the relevant four-month time period is from July 9, 2018 until November 8, 2018. See In re Jacob C.H., No. E2013-00587-COA-R3-PT, 2014 WL 689085, at *6 (Tenn. Ct. App. Feb. 20, 2014) (concluding that the day before the petition is filed is the last day in the relevant four-month period).

         Tennessee Code Annotated Section 36-1-102(1)(C) further provides that,

[f]or purposes of this subdivision (1), "token visitation" means that the visitation, under the circumstances of the individual case, constitutes nothing more than perfunctory visitation or visitation of such an infrequent nature or of such short duration as to merely establish minimal or insubstantial contact with the child[.]

         This court has emphasized that "visitation is not a rote statutory requirement; it is necessary to maintain the thread of the parent-child relationship[.]" In re Joshua S., No. E2010-01331-COA-R3-PT, 2011 WL 2464720, at *16 (Tenn. Ct. App. June 16, 2011). An absence of contact between a parent and child for an extended period of time can lead to, in effect, the "death" of the relationship. Id. "Whether a parent failed to visit . . . a child is a question of fact. Whether a parent's failure to visit . . . constitutes willful abandonment . . . is a question of law." In re Adoption of Angela E., 402 S.W.3d 636, 640 (Tenn. Ct. App. 2013) (citing In re Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn. 2007)). As previously discussed, this Court reviews questions of law de novo with no presumption of correctness. Id.

         Prior to 2018, the statutory definition of abandonment placed the burden of proof on the petitioner to show that the parent's failure to visit was "willful." In 2018, the General Assembly amended the statute to shift the burden of proof to the parent or guardian to show that his or her failure to visit was not willful. For cases filed on or after July 1, 2018, Tennessee Code Annotated section 36-1-102(1)(I) now provides that:

For purposes of this subdivision (1), it shall be a defense to abandonment for failure to visit or failure to support that a parent or guardian's failure to visit or support was not willful. The parent or guardian shall bear the burden of proof that the failure to visit or support was not willful. Such defense must be established by a preponderance of evidence. The absence of willfulness is an affirmative defense pursuant to Rule 8.03 of the Tennessee Rules of Civil Procedure

Tenn. Code Ann. § 36-1-102(1)(I). Here, DCS filed its petition on November 9, 2018; accordingly, Mother has the burden to show that her failure to visit the Child was not willful. Concerning the concept of willfulness in the context of abandonment for purposes of termination of parental rights, this Court has stated:

In the statutes governing the termination of parental rights, "willfulness" does not require the same standard of culpability as is required by the penal code. Nor does it require malevolence or ill will. Willful conduct consists of acts or failures to act that are intentional or voluntary rather than accidental or inadvertent. Conduct is "willful" if it is the product of free will rather than coercion. Thus, a person acts "willfully" if he or she is a free agent, knows what he or she is doing, and intends to do what he or she is doing. . . .
The willfulness of particular conduct depends upon the actor's intent. Intent is seldom capable of direct proof, and triers-of-fact lack the ability to peer into a person's mind to assess intentions or motivations. Accordingly, triers-of-fact must infer intent from the circumstantial evidence, including a person's actions or conduct.

In re Audrey S., 182 S.W.3d 838, 863-64 (Tenn. Ct. App. Aug. 25, 2005) (internal citations and footnotes omitted).

         In its order terminating Appellant's parental rights, the trial court made the following relevant findings concerning this ground:

[T]he Court finds that there is clear and convincing evidence that in the four months before the petition to terminate parental rights was filed on November 9, 2018, [Mother] engaged in token visitation with the child. [Mother] had the opportunity to visit eight times during that period for two hours each. [Mother] chose to only visit three times in that period, on August 14, 2018; September 12, 2018; and on October 24, 2018. [Mother] was not incapacitated in any way during this period and was aware of the visitation opportunities. [Mother] did not attempt to make up or reschedule the visitation. [Mother] knew the consequence of her failure to visit her child because she had received the Criteria for Termination of Parental Rights document on multiple occasions. FSW Farmer reminded [Mother] that her failure to visit the child regularly could result in this abandonment being used to terminate her parental rights.

         As discussed above, the purpose of visitation is to develop a bond and relationship between the parent and the child. The concern here is not that Mother failed to visit the child at all; rather, the issue is that Mother failed to engage with the child during the visits such that these visits constituted nothing more ...


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