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In re Ronon G.

Court of Appeals of Tennessee, Nashville

January 16, 2020

IN RE RONON G.

          Assigned on Briefs December 2, 2019

          Appeal from the Circuit Court for Lewis County No. 2016-CV-20 Michael E. Spitzer, Judge

         Mother appeals the termination of her parental rights to her two children on grounds of abandonment by failure to establish a suitable home, substantial noncompliance with permanency plans, and persistence of conditions. We conclude that two grounds were not applicable to Mother's younger child because she was not removed from Mother's home. Because at least one ground was supported by the evidence as to each child, and the evidence clearly and convincingly shows that termination is in their best interest, we affirm the overall termination of Mother's parental rights as modified.

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

          Richard Boehms, Hohenwald, Tennessee, for the appellant, Cassandra G.

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

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

          OPINION

          J. STEVEN STAFFORD, JUDGE

         I. Background

         The Tennessee Department of Children's Services ("DCS") became involved with Respondent/Appellant Cassandra G.[1] ("Mother") in January 2014, due to concerns of environmental neglect of Mother's son, Ronon G.[2] Relevant to this appeal, DCS conducted a home study of Mother's home at that time and noted that it was filthy and unsuitable for a child. DCS also was concerned that Ronon was not wearing weather-appropriate clothes that fit him. Mother moved twice in quick succession, first to a home with no electricity and then to a home that had no stove or refrigerator. DCS set up services for Mother, but Mother gave birth to a second child, Persephone G., before the services began. A few days after her birth, Persephone was hospitalized at Vanderbilt Hospital in Nashville. Persephone underwent heart surgery and remained continuously at Vanderbilt Hospital for approximately two months.

         During Persephone's hospitalization, Mother left Ronon with relatives; Mother lived sometimes with these relatives, often with other relatives, and sometimes in Nashville.[3] DCS provided the relatives caring for Ronon with various necessary supplies because Mother did not provide them and the relatives could not afford them. DCS was also concerned because Mother was doing little to maintain her bond with Ronon during this time. Following heart surgery and recovery, Persephone was set to be released on two conditions: (1) her caregiver was required to provide a sterile environment free of cigarette smoke, pets, and other irritants; and (2) the caregiver was required to spend 48-hours in the hospital "rooming-in" to learn to provide the care necessary for the child under hospital supervision. Mother did not complete the rooming-in period and she was not able to provide a home meeting these requirements. Moreover, the relatives caring for Ronon could not provide for him due to financial issues.[4] As such, the children came into DCS custody by ex parte custody order on August 21, 2014. The children were placed with a foster family ("Foster Family") that completed the rooming-in period and that was qualified to care for a medically fragile child. The children continued to reside with Foster Family at the time of the termination petition.

         DCS filed a termination petition on August 18, 2016.[5] Therein, DCS alleged grounds for termination of abandonment by failure to provide a suitable home, substantial non-compliance with permanency plans, and persistence of conditions. DCS filed an amendment to their petition on August 31, 2018, to add the ground of mental incompetence. The trial court thereafter denied Mother's motion to strike the amendment but granted Mother's request for a continuance. A trial was held on March 29, 2019. The proof consisted of the testimony of several DCS workers, foster mother, and the deposition of a mental health professional retained to evaluate Mother's mental competence. Mother did not testify or call any witnesses on her behalf.

         DCS presented several parenting plans that were ratified by the juvenile court. The general focus of the plans, as detailed infra, was for Mother to establish a safe and stable home, for Mother to engage in visitation so as to bond with the children, for Mother to participate in mental health treatment, and for Mother to obtain a legal means of income.

         Mother's housing situation was a significant issue at trial. Following the removal, Mother moved into a home with her current boyfriend. Two home visits revealed that the house was filthy and lacked appropriate furniture and food for the children.[6] Mother soon left this residence, as she claimed that her boyfriend was abusive. For the next several years, Mother moved from home to home, often staying with friends and relatives. Sometimes Mother would not allow DCS to complete home visits on the homes; sometimes home visits revealed the homes to be unsuitable. Mother never provided a lease showing that she had obtained any kind of stable residence and no home visit ever concluded with a finding that Mother has a safe and stable residence for the children.

         Mother had various jobs following the removal of the children, but none that lasted for a significant period of time. The only proof of income provided to DCS was a handwritten statement from 2014 stating that Mother has been paid $272.00. Mother paid some child support following the removal, but was not consistent. In September 2015, Mother was held in criminal contempt for her failure to pay child support.

         Mother was provided supervised visitation following the removal of the children, as well as parenting classes; Mother completed parenting classes and the visitation was eventually increased. Mother missed some visits, often without timely notice. During other visits, she would play on her phone; as such, DCS asked Mother to leave her phone in her car during visits. When Mother was attentive, she gave the majority of her attention to Ronon to the exclusion of Persephone. As such, Persephone was allowed to engage in unsafe behaviors until stopped by DCS. Mother also provided unsafe food to Persephone. During visits and other communications with DCS, Mother spoke to DCS mostly about herself; outside of visits, Mother never asked about the children's well-being. Foster Mother eventually stopped coming to visits because the children looked to her for direction, rather than Mother. Because Mother did not apply the skills she learned in parenting classes during the visitations, DCS offered Mother additional classes; Mother declined, stating that she did not need them.

         Both children, but especially Persephone, had various medical and developmental issues that were well taken care of by Foster Family. For example, following her discharge from Vanderbilt Hospital, Persephone was initially required to attend weekly doctor's appointments. Ronon was developmentally delayed, nonverbal, and suffered from an emotional issue that manifested with physical symptoms. Both children, however, were improving in Foster Family's care by the time of trial, with Persephone needing only yearly appointments for her heart condition. Although Mother was encouraged to attend all of the children's appointments, Mother attended relatively few appointments, and mostly only those that were scheduled during her visitation time.

         The children are bonded to their Foster Family, who wishes to adopt the children. The children refer to their foster parents as "mom and dad," while Mother is referred to as "birth mom." Ronon once told Mother that she was "not [his] mommy." According to the testimony, the children are also bonded with Foster Family's extended family, as well as the school, church, and neighborhood to which they belong.

         Finally, the deposition testimony of a psychological examiner was admitted into evidence. Mother admittedly suffers from depression, anxiety, and bipolar "tendencies" but reported that she was medicated and had historically attended counseling.[7] The examiner testified as to the tests performed on Mother to determine her mental competence. Although Mother's mental capabilities fell in the average range, the examiner opined that Mother presented a high risk to be abusive and that she was not able to adequately care for her children were she to have sole responsibility for them.

         Following trial, the trial court entered a written order finding sufficient proof of the grounds of abandonment by failure to provide a suitable home, substantial non-compliance with permanency plans, and persistence of conditions. The trial court did not, however, find sufficient proof of mental incompetence. The trial court further found that termination was in the children's best interests. Mother thereafter filed a timely appeal.

         I. Issues Presented

         On appeal, Mother challenges each of the grounds found by the trial court, as well as the trial court's finding that termination is in the children's best interest.

         II. Standard of Review

         The Tennessee Supreme Court has previously explained that:

A parent's right to the care and custody of her child is among the oldest of the judicially recognized fundamental liberty interests protected by the Due Process Clauses of the federal and state constitutions. Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption of Female Child, 896 S.W.2d 546, 547-48 (Tenn. 1995); Hawk v. Hawk, 855 S.W.2d 573, 578-79 (Tenn. 1993). But parental rights, although fundamental and constitutionally protected, are not absolute. In re Angela E., 303 S.W.3d at 250. "'[T]he [S]tate as parens patriae has a special duty to protect minors. . . .' Tennessee law, thus, upholds the [S]tate's authority as parens patriae when interference with parenting is necessary to prevent serious harm to a child." Hawk, 855 S.W.2d at 580 (quoting In re Hamilton, 657 S.W.2d 425, 429 (Tenn. Ct. App. 1983)); see also Santosky v. Kramer, 455 U.S. 745, 747, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re Angela E., 303 S.W.3d at 250.

In re Carrington H, 483 S.W.3d 507, 522-23 (Tenn. 2016) (footnote omitted). In Tennessee, termination of parental rights is governed by statute which identifies "'situations in which that 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 Jacobe M.J., 434 S.W.3d 565, 568 (Tenn. Ct. App. 2013) (quoting 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))). Thus, a party seeking to terminate a parent's rights must prove: (1) existence of one of the statutory grounds and (2) 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).

         Considering the fundamental nature of a parent's rights, and the serious consequences that stem from termination of those rights, a higher standard of proof is required in determining termination cases. Santosky, 455 U.S. at 769. As such, a party must prove statutory grounds and the child's best interests by clear and convincing evidence. Tenn. Code Ann. § 36-3-113(c); 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 evidence[, ]" and "produces in a fact-finder's mind a firm belief or conviction regarding the truth of the facts sought to be established." In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004).

         In termination cases, appellate courts review a trial court's factual findings de novo and accord these findings a presumption of correctness unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d); In re Carrington H, 483 S.W.3d at 523-24 (citing In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010); In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009); In re Adoption of A.M.H, 215 S.W.3d 793, 809 (Tenn. 2007)). Our supreme court further explains:

The trial court's ruling that the evidence sufficiently supports termination of parental rights is a conclusion of law, which appellate courts review de novo with no presumption of correctness. In re M.L.P., 281 S.W.3d at 393 (quoting In re Adoption of A.M.H., 215 S.W.3d at 810). Additionally, all other questions of law in parental termination appeals, as in other appeals, are ...

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