In Re: Joseph G. ( 2013 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs May 31, 2013
IN RE JOSEPH G. ET AL.
Appeal from the Juvenile Court for Hancock County
No. J1170 Floyd W. Rhea, Judge
No. E2012-2501-COA-R3-PT-FILED-JULY 31, 2013
This is a termination of parental rights case focusing on Joseph G., Trinity G., and Stephen
G. (“the Children”), the minor children of a married couple, J.G. (“Father”) and E.G.
(“Mother”). The Children, then ages four, two and one respectively, were placed in the
protective custody of the Department of Children’s Services (“DCS”) following the
incarceration of both parents. The Children were subsequently adjudicated dependent and
neglected by stipulation of the parents. A year after the Children entered foster care, DCS
filed suit to terminate the parents’ rights. Following a bench trial, the court granted DCS’s
petition. The trial court found, by clear and convincing evidence, that multiple grounds for
termination exist as to both parents and that termination is in the Children’s best interest.
Father and Mother separately appeal. As to both parents, we reverse the trial court’s finding
of willful failure to support. In all other respects, the judgment is affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Reversed in Part; Termination of Both Parents’ Parental
Rights Affirmed; Case Remanded
C HARLES D. S USANO, J R., P.J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and J OHN W. M CC LARTY, JJ., joined.
Aaron J. Chapman, Morristown, Tennessee, for the appellant, J.G.
William E. Phillips, II, Rogersville, Tennessee, for the appellant, E.G.
Robert E. Cooper, Jr., Attorney General and Reporter, and Mary Byrd Ferrara, Assistant
Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of
Children’s Services.
Deborah A. Yeomans, Johnson City, Tennessee, Guardian ad Litem.
OPINION
I.
DCS first became involved with the family in August 2010. Police responded to a
report that no one was home to meet Joseph when he arrived from kindergarten. Upon
investigation, the police also found that the two younger children, Trinity and Stephen, had
been left unsupervised. When Mother arrived home, she was arrested for public intoxication.
By Mother’s account, she was at home but had fallen asleep. She denied that she was “high,”
but admitted to failing a sobriety test. Father was not present at the scene; at the time, he was
subject to a restraining order that Mother had taken out stemming from a 2009 domestic
assault. DCS took the Children into protective custody. They were returned to Mother the
following month when DCS’s petition for temporary custody was dismissed because of
DCS’s failure to timely pursue it. DCS established a non-custodial permanency plan for the
Children. It began making efforts to assist Mother. Mother did not comply with the plan or
follow any of DCS’s recommendations.
On December 19, 2010, Mother and Father were incarcerated. Mother had been
arrested on a charge of theft over $1,000 and for failure to appear. Father, who had been free
on bond, was arrested for a probation violation and failure to appear. Initially, the Children
were placed in the emergency custody of their maternal grandmother, L.F. (“Grandmother”).
After a few days, she returned them to DCS custody, stating she was unable to care for them
at her current residence. DCS filed another petition for temporary custody on December 22,
2010. The petition alleged that the Children were dependent and neglected and in need of
a proper guardian. The trial court granted the petition and the Children entered foster care.
The Children were twice moved before settling into their third and current foster home
placement in March 2011.
In January 2011, the non-custodial plan became the “family permanency plan.” The
plan’s stated goal was the return of the Children to the parents. The plan generally charged
the parents with providing an environment “without domestic violence, drug abuse and
public intoxication concerns.” DCS went over the plan with Mother and Father and they
signed it.1 Among their responsibilities, the parents were required to enroll in domestic
violence classes and seek marital counseling; complete anger management classes; complete
alcohol and drug assessments; follow all recommendations following the assessments;
1
Father was in jail at the time; the case manager personally delivered the plan to Father there and
reviewed it with him “line by line,” after which he signed it.
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complete parenting classes; submit to hair follicle drug tests; pass all drug screens; and
“present themselves in a sober fashion.” Further, they were directed to obtain and maintain
suitable housing, complete therapeutic visitations with the Children, pay child support and
provide gifts and clothing for the Children.
On February 1, 2011, by an agreed order, the Children were adjudicated as being
dependent and neglected. Father was released on bond in March 2011, but he returned to jail
in May to serve 270 days after he again violated his probation, for the fourth time. In
interactions with the parents, the DCS case manager, Patricia Johnson, repeatedly observed
that Mother was intoxicated – at the DCS office, on the street, and when Mother arrived for
a parenting assessment. Mother seemed to doze off at DCS meetings and court hearings.
When questioned, Mother told Ms. Johnson that she was taking Suboxone, a drug that,
according to Mother, allowed her to consume alcohol without her consumption being
detected on any “flipping test” she might be required to take. Mother denied ever being
intoxicated around her case manager, but admitted to taking sleeping pills. At an agency
meeting in August 2011, DCS staff determined that the parents had made no discernable
progress toward regaining custody. As a consequence, DCS decided to proceed with a suit
to terminate. At the same time, they gave Mother and Father more time to see if they would
follow through with their stated intention to make some progress in completing the “action
steps” outlined in the permanency plan.
By December 2011, DCS had filed a revised permanency plan that changed the goal
of the plan to adoption. DCS noted that Mother and Father had failed to complete any of the
plan’s goals looking toward a restoration of custody. DCS pointed out that the parents made
no real effort on the permanency plan until after termination proceedings were initiated.
The trial court ordered no further contact between the parents and the Children based
on allegations that the visits were too upsetting to the Children. On December 19, 2011,
DCS filed a petition to terminate the parents’ parental rights. The petition asserted multiple
grounds against each parent for termination, including abandonment, non-compliance with
the permanency plan, and persistence of conditions. Trial was held in September 2012.
Joseph was then seven, Trinity was five and Stephen was four.
The proof showed that the parents led troubled lives before and after losing custody.
Both had criminal histories that dated back several years. After Mother and Father went to
jail and the Children were removed, the parents had no stable housing or employment.
During most of 2011, Father was incarcerated. At other times, Mother and Father moved
around, lived with others, or stayed in a motel room. In March 2011, Mother was involved
in a serious car accident. At the time, she was already taking prescription pain medication.
The dosages were increased when the Children were removed. Mother said between May
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and July 2011, she stopped going to a pain clinic and tried to wean herself off the drugs in
an effort to regain custody. The record reflects, however, that in May 2011, she was
dismissed from the clinic as a result of using different names to obtain narcotics from
different pharmacies. Mother admittedly regressed. In September 2011, she took Suboxone
prescribed for someone else. Mother did not have her driver’s license reinstated or a car until
the end of December 2011. By then, contact with the Children had been prohibited and
Mother did nothing for the next three months. She “just stayed home.”
Mother acknowledged she did not satisfy the requirements of the permanency plan;
she said she had tried. She explained that, for the most part, she raised the Children alone
because Father was either away working or in jail. When Father was in jail, Mother
supported the family with welfare and/or food stamps if she was not doing odd jobs. She
said she always did her best for the Children, even when they lost Father’s income and the
family had to move because there was no money to pay the rent. Mother said the Children
“always had a roof over [their] heads, food . . . and been nice and warm and clean and
loved.”
Father made some progress – he incurred no new criminal charges following his
release from jail in October 2011; and he had completed a parenting assessment while in jail.
Father visited the Children when he was released on bond, but agreed that during the same
time he did not obtain a home, job, or transportation. Father agreed that the case manager
had attempted to help him and acknowledged that he failed to undergo a hair follicle drug
test, attend anger management or parenting classes, did not secure stable housing, and failed
to attend the Children’s appointments before the termination petition was filed. At trial, he
testified he was working doing odd jobs on a cattle farm. He also said that he expected to
have his driver’s license reinstated.
Mother testified that, at the time of trial, she was working for her grandmother and
earned $160 a week. Before the petition was filed, she briefly worked at McDonald’s and
said child support was deducted from her checks. She also worked at other odd jobs. She
testified that, in May 2012, she sent $300 to the offices of child support enforcement services
through her mother. She testified she could take care of the Children now. She and Father
testified that, since approximately January 2012, they were living in a trailer that they had
purchased. It was located on Grandmother’s property.
According to the DCS’s Ms. Johnson, the Children had “flourished” in their current
foster home in the six months before trial. On the other hand, she stated that the parents had
made no obvious changes in circumstances or conduct such as would allow the Children to
return safely to their care. In the Spring of 2012, Father had ceased any contact with DCS.
The case manager only saw Mother when she appeared in court on other matters. At no time
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following the Children’s removal from Mother’s care had she asked about the Children’s
well-being. Father only inquired about them very early in the process.
The trial court found that there was clear and convincing evidence to establish the
same multiple grounds with respect to termination of each parent’s rights. More specifically,
the court found: (1) abandonment – by willful failure to visit or support, by conduct evincing
a wanton disregard for the Children’s welfare, and by the parents’ failure to provide a
suitable home; (2) substantial noncompliance with a permanency plan, and (3) persistence
of conditions. The court further found there is clear and convincing evidence that
termination of both parents’ rights is in the best interest of the Children. Mother and Father,
represented by separate counsel, each filed a timely notice of appeal.
II.
The following issues are raised:
1. The trial court erred in finding that there was clear and
convincing evidence to establish multiple forms of abandonment
2. The trial court erred in finding that there was clear and
convincing evidence to establish substantial noncompliance with
a permanency plan.
3. The trial court erred in finding that there was clear and
convincing evidence to establish that the conditions which led
to the Children’s removal still persisted.
4. The trial court erred in finding, by clear and convincing
evidence, that termination of Mother’s rights was in the best
interest of the Children.
5. The trial court made evidentiary errors in admitting
Collective Exhibit #1 into evidence and by relying on said
exhibit in its findings of fact.
6. The trial court erred in admitting testimony that an email
from an employee of the District Attorney’s Office showed a
failure of the [parents] to pay child support.
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III.
In a termination of parental rights case, this Court has a duty to determine “whether
the trial court’s findings, made under a clear and convincing standard, are supported by a
preponderance of the evidence.” In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006). The
trial court’s findings of fact are reviewed de novo upon the record accompanied by a
presumption of correctness unless the preponderance of the evidence is against those
findings. Id.; Tenn. R. App. P. 13(d). Great weight is accorded the trial court’s
determinations of witness credibility, which shall not be disturbed absent clear and
convincing evidence to the contrary. See Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).
Questions of law are reviewed de novo with no presumption of correctness. Langschmidt
v. Langschmidt, 81 S.W.3d 741 (Tenn. 2002).
As this Court has observed:
It is well established that parents have a fundamental right to the
care, custody, and control of their children. While parental rights
are superior to the claims of other persons and the government,
they are not absolute, and they may be terminated upon
appropriate statutory grounds. A parent’s rights may be
terminated only upon “(1) [a] finding by the court by clear and
convincing evidence that the grounds for termination of parental
or guardianship rights have been established; and (2) [t]hat
termination of the parent’s or guardian’s rights is in the best
interest[] of the child.” Both of these elements must be
established by clear and convincing evidence. Evidence
satisfying the clear and convincing evidence standard 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 Angelica S., E2011-00517-COA-R3-PT, 2011 WL 4553233 (Tenn. Ct. App. E.S., filed
Oct. 4, 2011)(citations omitted).
IV.
First, we address the parents’ evidentiary issues. Mother challenges the trial court’s
admission of Collective Exhibit 1, entitled “DCS Notebook” on hearsay grounds. Generally
summarized, Exhibit 1 consists of all of the documents compiled by the case manager in
support of DCS’s case. The exhibit begins with copies of the Children’s birth certificates
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and includes photos; the permanency plans; court orders, petitions, motions and affidavits
of reasonable efforts; service of process; the putative father registry; and TFACTS 2 reports.
In a related issue, both Mother and Father specifically challenge the admissibility of an email
from a person responding to the case manager’s inquiry concerning child support.
Mother asserts that allowing Exhibit 1, a massive compilation of assorted documents,
into evidence as a collective exhibit prevented her from challenging the veracity or reliability
of any one document. She complains that some of the reports and other documents were not
generated by DCS, only collected by it. At trial, counsel for Mother and Father essentially
objected to Exhibit 1 as follows:
Mr. Chapman [for Father]: [F]irst issue that was addressed was
that that’s a business record exception. That doesn’t include, . . .
double, triple, quadruple hearsay, so and so said that such and
such showed up for her assessment and that such and such said
that so and so said she had this issue going on, all that type of
stuff does not qualify under business records. If it’s relevant
and if it needs to be brought in, it needs to be brought in
individually. We can’t admit 600 pages of other people’s
statements and uncertified Court records.
Mr. Guinn [for DCS]: Then counsel needs to make a specific
objection . . .
* * *
Mr. Chapman: The notebook is objected to.
Mr. Guinn: Bring out the documents you object to and the
portion of the documents you object to?
Mr. Phillips [for Mother]: We’re not the ones introducing it.
* * *
The Court: If you’ll go item by item what’s in the table of
contents then I’ll rule on what can be collectively introduced.
2
TFACTS is an acronym for Tennessee Family and Child Tracking System.
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* * *
[T]he witness has testified that these are all business records
maintained by her in her course of the case management for
these three children and you’ll have ample opportunity to cross
examine[] her. And it, for efficiency the Collective Exhibit is
probably the best way to go. . . . So, and you’re welcome to
cross examine her on any document that is introduced. . . .
Tenn. R. Evid. 803(6) provides a hearsay exception for “business records” as follows:
A memorandum, report, record, or data compilation, in any
form, of acts, events, conditions, opinions, or diagnoses made at
or near the time by or from information transmitted by a person
with knowledge and a business duty to record or transmit if kept
in the course of a regularly conducted business activity and if it
was the regular practice of that business activity to make the
memorandum, report, record or data compilation, all as shown
by the testimony of the custodian or other qualified witness or
by certification that complies with Rule 902(11) or a statute
permitting certification, unless the source of information or the
method or circumstances of preparation indicate lack of
trustworthiness. The term “business” as used in this paragraph
includes business, institution, profession, occupation, and
calling of every kind, whether or not conducted for profit.
The Advisory Commission comments state:
This rule essentially is the same as the Uniform Business
Records as Evidence Act, Tenn. Code Ann. § 24-7-111 [since
repealed]. To avoid interpretive mistakes such as that in
Wheeler v. Cain, 62 Tenn. App. 126, 459 S.W.2d 618 (1970),
the proposal specifically requires that the declarant have “a
business duty to record or transmit” information. Without that
duty, a business record would lack the trustworthiness necessary
to carve out a hearsay exception.
As DCS correctly submits, Ms. Johnson of DCS laid the proper foundation for the
introduction of Exhibit 1. She testified that the documents therein were generated or
compiled by her in the course of her management of the Children’s custody case in her
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capacity as their DCS case manager. As to the objection to the admission of Exhibit 1 as a
collective exhibit, we conclude that there was no error.
Subsequently, counsel for Mother objected to a specific document contained in
Exhibit 1 as hearsay. More specifically, in her testimony, Ms. Johnson relied on an email she
received from a “Rose Sauls” regarding child support payments by Mother and Father. The
email at issue was in response to an inquiry Ms. Johnson sent to Ms. Sauls as follows:
From: Patricia C. Johnson
Sent: Friday, January 27, 2012
To: Rose Sauls
Subject: [G.] CASE
I have filed TPR on the case of [Father and Mother] over in
Hancock, I had mailed the court order earlier.
I just need to know if the family [J.G.] . . . or [E.G.] . . . had paid
any child support and or has any court dates for child support.
The responsive email is as follows:
RE: [G.] CASE
Rose Sauls
Sent: Friday, February 03, 2012
To: Patricia C. Johnson
[E.G.] has paid nothing and her cases are set for Court to Show
Cause on 4/19/12. [J.G.] just started paying this month.
During Ms. Johnson’s direct testimony, counsel for Mother objected as follows:
Mr. Guinn: And how many payments of child support did
[Mother] make . . . .?
Ms. Johnson: Per my record that I received from child support
as of . . .
Mr. Phillips: Judge . . .
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Ms. Johnson: . . . the month of December when I filed [the
petition], it was none.
Mr. Phillips: It’s hearsay.
The Court: It’s a business record.
* * *
Mr. Phillips: Her notes, I would submit, are not a business
record.
Ms. Johnson: I’m not reading from notes. I’m reading from this
book. The Child Support Enforcement, we have to contact them
through . . . email. We can’t go to their office. Ms. Rosa Sauls
was the Child Support Enforcement person who sent me the
email and it’s documented in the file.
* * *
The Court: I’ll note your ongoing objection to hearsay and this
one is overruled.
In our view, the email from Ms. Sauls was properly objected to as inadmissible
hearsay. Notably, the email does not identify Ms. Sauls or her position. Nor does it appear
that the email is properly construed as a “record” at all. It is simply the sender’s
interpretation of information she presumably gained from another, unidentified source. DCS
relies on the email as its only evidence that Mother and Father willfully failed to support the
Children. At trial, the details regarding the dates and amounts were not clear, but both
parents certainly testified that they had made some child support payments in the months
after the Children were removed and before the petition was filed, and thereafter. Both
testified to brief periods of employment when, they asserted, support payments were
deducted from their checks. Father further testified that a tax refund he received was applied
to child support.
The parents’ testimony concerning payments of child support is uncorroborated. As
we earlier noted, however, each alleged ground for termination must be proven by clear and
convincing evidence. In this regard, DCS has the burden of proof. Having concluded that
the email is inadmissible hearsay, we must further conclude that there is no evidence to
support the trial court’s finding that Mother and Father abandoned the Children by willfully
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failing to provide child support. Accordingly, the finding of abandonment by non-support is
hereby reversed as to both Mother and Father. We now move to the remaining grounds for
termination, mindful that only a single ground must be proved by clear and convincing
evidence to justify termination. In re Audrey S., 182 S.W.3d 838, 862 (Tenn. Ct. App.
2005).
V.
A.
The trial court found that both parents abandoned the Children by failing to visit them,
by engaging in conduct evincing a wanton disregard for their welfare, and by failing to
provide them with a suitable home. Tenn. Code Ann. § 36-1-113(g)(1) (2010) provides that
termination can be based upon a showing that “[a]bandonment by the parent or guardian, as
defined in § 36-1-102, has occurred….” Tenn. Code Ann. § 36-1-102 (2010) defines forms
of abandonment, as relevant in the present case, as follows:
(ii) The child has been removed from the home of the parent(s)
or guardian(s) as the result of a petition filed in the juvenile
court in which the child was found to be a dependent and
neglected child, as defined in § 37-1-102, and the child was
placed in the custody of the department or a licensed
child-placing agency, that the juvenile court found, or the court
where the termination of parental rights petition is filed finds,
that the department or a licensed child-placing agency made
reasonable efforts to prevent removal of the child or that the
circumstances of the child’s situation prevented reasonable
efforts from being made prior to the child’s removal; and for a
period of four (4) months following the removal, the department
or agency has made reasonable efforts to assist the parent(s) or
guardian(s) to establish a suitable home for the child, but that
the parent(s) or guardian(s) have made no reasonable efforts to
provide a suitable home and have demonstrated a lack of
concern for the child to such a degree that it appears unlikely
that they will be able to provide a suitable home for the child at
an early date.
* * *
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(iv) A parent or guardian is incarcerated at the time of the
institution of an action or proceeding to declare a child to be an
abandoned child, or the parent or guardian has been incarcerated
during all or part of the four (4) months immediately preceding
the institution of such action or proceeding, and either has
willfully failed to visit or has willfully failed to support or has
willfully failed to make reasonable payments toward the support
of the child for four (4) consecutive months immediately
preceding such parent’s or guardian’s incarceration, or the
parent or guardian has engaged in conduct prior to incarceration
that exhibits a wanton disregard for the welfare of the child;
Tenn. Code Ann. § 36-1-102(1)(A)(ii), (iv). “Willfully failed to visit” means the willful
failure, for a period of four (4) consecutive months, to visit or engage in more than token
visitation. “[T]oken 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.” Tenn. Code Ann. § 36-1-102(C), (E).
B.
In the present case, the trial court found that both parents willfully failed to visit the
Children. We consider this ground with respect to each parent.
Mother was in jail during part of the four-month period before the petition was filed.
Accordingly, as to her, the relevant time period for establishing abandonment by failure to
visit the Children is the four-month period before she was incarcerated – June 4, 2011 until
October 4, 2011. The trial court found that Mother was aware of her obligation to visit the
Children because DCS repeatedly informed her of this obligation at child and family team
meetings. Furthermore, it was required in the permanency plan she signed. The trial court
further found:
In the four months before [Mother] went to jail, she willfully
failed to visit the [C]hildren, although she was able to visit, and
the visitation[s] she kept were token in nature as she was
intoxicated, verbally abusive, and inappropriate with the
[C]hildren; she brought inappropriate persons to the visits; she
knew the [C]hildren were in DCS custody, and there was no
court order or any other impediment to visitation. From
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December 2010 until November 2011[,] [Mother] attended
sixteen . . . visits and missed thirty one . . . visits.
Both parents testified they were aware of their obligations toward the Children as set
forth in the permanency plans and court orders. They also acknowledged that they had
received the criteria for termination. At trial, Mother testified that she visited whenever she
was able. Again, during 2011, Mother appeared for only 16 of 52 scheduled visits. During
March and April, Mother repeatedly cancelled visits or they were ended early. In the months
before the petition was filed, the parents were permitted 2 hours of supervised visits a week,
and they were allowed to attend the Children’s appointments, go to school meetings, and
contact the Children in writing or by phone. Grandmother was allowed overnight visitation
every weekend and she supervised many of the parents’ visits. She said Mother, and Father,
when he was not in jail, visited “many more times” than they missed. She said the parents
showed “excellent parenting skills” and the Children were “very happy” during visits. Other
witnesses, however, testified to the contrary.
During the critical period, the supervising staff reported that Mother did not do well
at the visits – she was “mad. . . , acting out of sorts,” yelled, and more than once brought a
different male companion with her. It was noted that “little or no progress [was] made with
Mother.” During July 2011, Mother was a no-show for one visit and another time arrived
unscheduled at Grandmother’s house with a male companion. By then, DCS had informed
Mother that it would no longer pay for therapeutic visitation services because she was not
making progress and the schedule was not being kept. Mother did not dispute that she
missed visits; she testified only that she visited the Children “every chance [she] got. . . . ”
She gave no reason for missing the majority of the visits during 2011 other than being in a
car wreck in March and having to rely on others for transportation. The case manager
testified to her continued view that Mother exercised only token visitation – visits that were
not appropriate due to Mother’s behavior.
Father was incarcerated from December 2010 until March 7, 2011, when he was
released on bond. Father violated his probation and was incarcerated again from May 17,
2011 until October 11, 2011. Consequently, the relevant four-month period for Father begins
January 16, 2011 and ends May 16, 2011. Again, the trial court found that, like Mother,
Father was aware of his obligations pursuant to the permanency plan and meetings with, and
information repeatedly provided to him by, the DCS case manager. Father was admittedly
provided a visitation schedule and notified, at least six times, of the consequences of his
failure to exercise his visitation rights during the four month period. The court found that
Father “willfully failed to visit the [C]hildren, although he was able to visit, and the visitation
he kept was token in nature as he was inappropriate with the [C]hildren, and became
physically aggressive.” He testified that in the two months that he was on bond, he appeared
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at every weekly visit with the Children. Because he was incarcerated before and after those
two months, he was unable to visit the Children again until after his release in October 2011,
months after the four-month period had passed.
The trial court accurately summarized and properly considered the proof presented at
trial. The evidence supports the trial court’s finding of abandonment by failure to visit.
Although the proof does show that Father consistently visited the Children for the limited
time that he was out on bond from March to May 2011, he then violated the terms of his
probation and was returned to jail for the next 270 days. His actions prevented him from
exercising regular visits with the Children both leading into and during the critical period.
We agree with the trial court that the few visits Father was able to exercise are properly
considered token visitation. Similarly, the trial court considered the number and quality of
the visits Mother had and appropriately concluded they were also token in nature. By the
time of trial, both parents remained subject to an order that prohibited contact with the
Children so that they had had no contact with the Children in some eight months.
The evidence does not preponderate against the trial court’s finding that Mother and
Father willfully failed to visit the Children. The trial court properly terminated their rights
on the ground of abandonment by willful failure to visit.
C.
The trial court found that Mother and Father also abandoned the Children by failing
to provide them with a suitable home in the four months following the Children’s removal
– from December 19, 2010 until April 19, 2011 – despite reasonable efforts by DCS to assist
them. In its order, the trial court detailed a lengthy list of the various resources, referrals, and
services provided by DCS in an effort to help Mother and Father “get on their feet” and
improve their circumstances so that they could provide a suitable home for the Children. At
the other end of the spectrum, the trial court set out the parents’ lack of action and progress
in this area. Among its findings, the court stated:
[Mother and Father] have made no reasonable efforts to provide
a suitable home or improve their personal conditions. Instead,
they have remained homeless and/or incarcerated.
[They] continued to have criminal charges, engage in criminal
activity, and remain on probation.
[They] have not secured safe stable housing or any type of
permanent residence.
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[Mother] has lived at at least five different locations during the
time the [C]hildren were in custody, none of which were in her
name nor did she pay rent.
[Father] was incarcerated for long periods of time and when he
was not in jail he testified that he was homeless and jobless and
paid no support, but . . . at the same time he was splitting rent
with his sister and working on Clifford Seal’s farm for minimum
wage.
The case worker from MATS Homeless Shelter testified that as
long as the people who stay there follow the rules and attempt
to find work there is no time limit on . . . [their] stay at the
shelter.
[Mother] stayed at MATS for . . . eight to nine days and then
went back to jail. Upon her release from jail she attempted to
stay at MATS once again but was unable to do so because she
failed a drug screen upon admission.
[Mother and Father] did not avail themselves of the housing lists
and efforts made by DCS to assist them in establishing a suitable
home.
[Mother and Father] have not shown that they have any means
to financially support themselves or the [C]hildren if they were
to regain custody, therefore putting the [C]hildren’s safety at
risk.
[Mother and Father] have not availed themselves of the
therapeutic visitation services to assist them in dealing with the
[C]hildren and building a positive relationship with [them].
[Mother] did not participate in a hair follicle . . . drug screen, or
. . . drug rehabilitation to prove that she was drug free and could
care for her children in a safe, sober, and proper fashion.
In summary, the trial court found as follows:
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[T]he testimony and exhibits are replete with evidence of DCS’s
efforts to assist [Mother and Father] in finding stable homes and
employment, and that [Mother and Father] made no reasonable
efforts to do the same.
[Mother’s and Father’s] failure to make even minimal efforts to
improve their home and/or personal condition demonstrates a
lack of concern for their children to such a degree that it appears
unlikely that they will be able to provide a suitable home for the
[C]hildren at an early date.
The proof shows that both parents were approved to stay at a shelter that provided
residents with counseling, employment assistance, food, clothing and shelter. Although the
case manager conceded that the shelter itself would not be deemed suitable permanent
housing, staying there would have allowed Mother and Father to be supported while they
made efforts to find jobs and work on their personal issues. In turn, they could have started
saving money to apply toward suitable, permanent housing of their own. Father was
approved for the shelter in October 2011, but decided instead to live with his sister, with
whom he shared rent. Mother checked into the shelter for roughly a week in September
2011, but a drug test indicated she was taking Suboxone and she was not allowed to reenter
the shelter on her release from jail the following month.
Ms. Johnson also provided the parents with a list of all available housing in a three-
county area with contact information and personally delivered an application for public
housing to them. She continuously updated the information she provided. Although Ms.
Johnson had personal contacts for an apartment complex in Sneedville, Mother informed her
that under “no conditions would she live in apartments in Sneedville.” Instead, Mother, and
Father, when he was not in jail, moved around, lived with different people, lived in a motel
room and were at times homeless. In the ten child & family team meetings that DCS held
in a 12-month period, housing and other requirements of the permanency plan were
reviewed, but the parents never obtained suitable housing.
In short, the proof established, and both parents essentially conceded, that they did not
obtain a safe, stable place for the Children in the year after DCS was granted custody of the
Children. Mother testified that she lost housing because she could not pay rent or was in jail,
and that she was homeless for a while. She admitted that she did not have suitable housing
until after the petition was filed. She explained that before then, she kept getting arrested for
public drunkenness and failure to appear in court because, she reasoned, “it’s pretty hard to
focus” when one’s whole life is disrupted. Mother and Father insisted, without any
supporting evidence, that by 2012, they had secured a suitable home for the Children.
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The evidence does not preponderate against the trial court’s findings. The trial court
properly terminated both Mother’s and Father’s rights on the ground of abandonment by
failure to provide a suitable home for the Children.
D.
Lastly, regarding the ground of abandonment, the trial court found that both parents
engaged in conduct prior to their incarceration that evidenced a wanton disregard for the
Children’s welfare. The court found, based on DCS reports, that Mother had appeared at
DCS for meetings in an obviously intoxicated state on some nine occasions during 2011. On
this point, the trial court expressly credited the testimony of the case manager, while it found
Mother’s testimony not to be credible. During this time, she also admitted to taking narcotic
pain pills and to using Suboxone which allowed her to pass drug screens. Further, the proof
showed that before the Children were removed, Joseph missed 19 days in his first year of
school, Mother failed to maintain contact with DCS, and continued to engage in criminal
activity. Mother’s criminal history dates back to 2007 when she failed to appear in court.
She was arrested for assault in June 2009, for public intoxication in 2010, and several times
thereafter for failure to appear in court. Mother said she was unable to drink alcohol since
she suffered liver injuries in the car accident and said she had not used drugs since August
2011. Nonetheless, she was arrested for public intoxication on September 1, 2011 and
admitted to having taken Lyrica at the time. On August 23, 2011 and again on October 14,
2011, she was arrested for public intoxication. In July 2012, Mother was charged with
smuggling narcotics into jail. At the time of trial, Mother had another charge of failure to
appear pending. Grandmother testified that Mother experienced a substance abuse problem
at the time the Children were removed and into the summer of 2011. She suggested Mother
get help with her drug issues, but conceded Mother never went for treatment.
The court found that Father also showed a wanton disregard for the Children’s
welfare. The court noted (1) Father’s arrest for a domestic assault against mother and a
conviction for assault against a child, both in 2009, and (2) his 2010 arrests for violation of
probation and failure to appear. Looking back to 2005, when the first child was born, Father
was arrested for driving under the influence, second offense. In 2007, he was arrested for
violating his probation and driving on a revoked license, and in 2008, for failure to appear
and escape. As with Mother, the court noted Father’s “ongoing criminal activity, and
continued incarcerations during this custody episode.” Lastly, the court observed that
Father’s “criminal record . . . shows a significant amount of time in jail and one cannot
effectively parent if one is incarcerated.” Father expressly conceded that his multiple
incarcerations since the Children were born exhibited a wanton disregard for the Children.
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He insisted that he was irresponsible before, but had changed for the better since losing the
Children.
This Court has held that “probation violations, repeated incarceration, criminal
behavior, substance abuse, and failure to provide adequate support or supervision for a child
can, alone, or in combination, constitute conduct that exhibits a wanton disregard for the
welfare of a child.” In re Audrey S., 182 S.W.3d at 867-68. All of these factors are present
in the instant case with respect to Mother or Father or both. Consequently, we conclude that
the evidence does not preponderate against the trial court’s finding that the parents acted in
wanton disregard for the Children’s welfare.
VI.
The trial court terminated both parents’ rights for being in substantial noncompliance
with the family’s permanency plan. See Tenn. Code Ann. §36-1-113(g)(2). The court found
that the goals of the initial and revised plan were appropriate and the responsibilities for
Mother and Father were reasonably related to remedying the conditions that necessitated the
Children’s removal. This finding is not in dispute.
As earlier discussed, the plan required the parents to address the problems they had
demonstrated in the areas of: (1) domestic violence, (2) alcohol and drug abuse, (3)
parenting, and (4) housing. Further, they were tasked with completing therapeutic visitations
with the Children and providing them with child support. The trial court found that both
parents failed to satisfy the majority of the plan’s requirements in that neither completed a
hair follicle drug screen, an anger management course, or followed recommendations of a
parenting assessment; they did not cooperate with therapeutic visitation services or attend the
Children’s appointments; they did not maintain a home free of illegal activity and drug use;
and they did not maintain suitable housing for a period of six months. The court further
found that Mother did not complete an alcohol and drug assessment despite multiple
convictions for public intoxication and did not maintain her sobriety or present herself to
DCS or the Children in a sober fashion.
The proof showed that, a year after the Children were placed in foster care, the parents
had demonstrated little to no progress in completing the specific “action steps” outlined in
the plan. As to Mother, she explained that she did not complete an alcohol and drug
assessment because it required her to admit she had a drug problem and she refused to do so.
As a result, she never obtained treatment for her substance abuse problem, seemingly her
most significant obstacle to regaining custody of the Children. Instead, after the Children
were removed, Mother continued to incur new criminal charges, often related to her
substance abuse. As for Father, he testified he was aware of the plan requirements and had
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“plenty of time,” but was unable to get anything done while his driver’s license remained
suspended. Although both parents testified that by 2012, they had established housing and
found some work, they provided nothing to support their claims. Any efforts to comply with
the permanency plan came long after the Children had entered foster care and not until the
termination proceedings had begun.
In summary, the proof preponderates overwhelmingly in favor of the trial court’s
finding that Mother and Father failed to comply substantially with the terms of the
permanency plan. Based on the foregoing, the trial court did not err in terminating the
parents’ rights based on the ground of their substantial noncompliance with the permanency
plan.
VII.
The trial court terminated the parents’ rights pursuant to Tenn. Code Ann. § 36-1-
113(g)(3)(A) - (C). That section provides for termination when:
The child has been removed from the home of the parent or
guardian by order of a court for a period of six (6) months and:
( A) The conditions that led to the child’s removal or other
conditions that in all reasonable probability would cause the
child to be subjected to further abuse or neglect and that,
therefore, prevent the child’s safe return to the care of the
parent(s) or guardian(s), still persist;
(B) There is little likelihood that these conditions will be
remedied at an early date so that the child can be safely returned
to the parent(s) or guardian(s) in the near future; and
(C) The continuation of the parent or guardian and child
relationship greatly diminishes the child's chances of early
integration into a safe, stable and permanent home.
With respect to this ground, the trial court found as follows:
DCS removed the [C]hildren from their home because of lack of
supervision, drug exposure, domestic violence, criminal activity,
and failure to comply with a non-custodial permanency plan.
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The conditions that led to the removal still persist in that the
Mother continues to abuse narcotics to the extent she is unable
to properly parent or care for her children. The Mother and
Father continue to be involved in criminal activity, resulting in
the Mother’s repeated incarceration and the Father’s lengthy
incarceration.
Other conditions in the home exist that, in all reasonable
probability, would lead to further neglect or abuse of the
[C]hildren in that the parents do not have housing, do not have
the ability to provide a safe and stable home; they continue on
probation and the [M]other has new criminal charges; they have
not completed the tasks on the permanency plan; they are
without a legal source of income; they are without proper
transportation; and they are unable to maintain visitation and do
not behave accordingly during what visitation they do attend;
and they have not paid support.
The Court finds that there is little chance that those conditions
will be remedied soon so that the [C]hildren can be returned
safely to the home because, for the life of this case, DCS made
reasonable efforts to help [Mother and Father] remedy those
conditions, to no avail, and [Mother and Father] have made no
reasonable efforts to remedy the reasons the [C]hildren came
into care.
The proof at trial showed that in the year after they were placed in DCS custody, the
Children were moved to three different foster homes as a result of their behavior problems.
Finally, they settled into their current home. During the same period of time, Mother and
Father were afforded a chance to remedy the conditions that led to their losing custody of the
Children. Fully aware of the tasks they needed to complete and armed with the assistance
provided by DCS and other entities, Mother and Father could have “worked the plan” in an
effort to regain custody. Instead, they continued their old ways – Mother turned to alcohol
and drugs, while Father continued to violate the law and return to jail. Neither made any
apparent efforts to obtain a steady income or stable housing, or to address their personal
circumstances. Not until the petition was filed and the real possibility of termination loomed
did Mother or Father take any steps in the right direction. Even then, the court had only their
word and nothing more to corroborate their assertion that they were both working for the past
few months, had a suitable home, and had the ability to properly care for and parent the
Children.
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This Court has observed:
Where, as here, efforts to provide help to improve the parenting
abilities, offered over a long period of time, have proved
ineffective, the conclusion that there is little likelihood of such
improvement as would allow the safe return of the child to the
parent in the near future is justified. The purpose behind the
“persistence of conditions” ground for terminating parental
rights is “to prevent the child’s lingering in the uncertain status
of foster child if a parent cannot within a reasonable time
demonstrate an ability to provide a safe and caring environment
for the child.”
In re Pauline M., No. E2009-02649-COA-R3-PT, 2010 WL 4515062 at *9 (Tenn. Ct. App.
M.S., filed Nov. 10, 2010) (internal citations omitted).
In the present case, the court concluded that the Children deserve a chance at life in
the type of “safe and caring environment” that their parents failed to provide. We agree. In
our view, DCS clearly and convincingly proved the ground for termination based on
persistence of conditions as to both parents. We therefore affirm the trial court’s finding.
VIII.
“The ultimate goal of every proceeding involving the care and custody of a child is
to ascertain and promote the child’s best interests.” In re Marr, 194 S.W.3d 490, 498 (Tenn.
Ct. App. 2005). Once grounds for termination have been found, the focus of the proceedings
shifts to the best interest of the child. Id. Having concluded that the trial court properly
terminated both parents’ rights in the case at bar, we next consider whether the decision is
in the Children’s best interest. We are guided in our review by the relevant statutory factors
set forth in Tenn. Code Ann. § 36-1-113(c).3
3
The factors are as follows:
(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the child’s
best interest to be in the home of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a lasting adjustment
after reasonable efforts by available social services agencies for such
duration of time that lasting adjustment does not reasonably appear
(continued...)
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In the present case, the trial court expressly analyzed the statutory factors and arrived
at the conclusion that granting the petition to terminate was in the best interest of the
Children. Of the nine factors, the court found that all of them weighed in favor of
permanently severing both Mother’s and Father’s ties to the Children. Among its findings,
the court noted that neither parent had changed their conduct or circumstances to the point
that the Children could be returned safely to their care, and they had not made the necessary
efforts to remedy the conditions that led to the Children’s removal. The court noted that
lasting change did not appear possible in the near future. The court further found that neither
parent had consistently maintained contact with the Children. The court found that because
both parents failed to address their personal issues, it was “highly likely” that the related
3
(...continued)
possible;
(3) Whether the parent or guardian has maintained regular visitation or
other contact with the child;
(4) Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is likely to
have on the child’s emotional, psychological and medical condition;
(6) Whether the parent or guardian, or other person residing with the parent
or guardian, has shown brutality, physical, sexual, emotional or
psychological abuse, or neglect toward the child, or another child or adult
in the family or household;
(7) Whether the physical environment of the parent’s or guardian’s home
is healthy and safe, whether there is criminal activity in the home, or
whether there is such use of alcohol or controlled substances as may render
the parent or guardian consistently unable to care for the child in a safe and
stable manner;
(8) Whether the parent’s or guardian’s mental and/or emotional status
would be detrimental to the child or prevent the parent or guardian from
effectively providing safe and stable care and supervision for the child; or
(9) Whether the parent or guardian has paid child support consistent with
the child support guidelines promulgated by the department pursuant to §
36-5-101.
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problems would continue, thereby rendering the parents unable to care for the Children.
Finally, the court noted that the only meaningful parent/child relationship was evidenced by
the strong bond the Children and their foster parents had developed in “the only safe and
stable home the [C]hildren had ever known.”
At trial, foster mother testified that, at first, the Children exhibited “really bad”
behavior. Joseph was violent toward his sister and said he wanted her dead, so the two had
to be kept separated. Trinity had similarly aggressive behavior. She began to improve after
attending a 15-week program at a child advocacy center. The foster parents instituted
structure and discipline using “timeouts” and rewards at home, and the Children underwent
“considerable” professional therapy. At the time of trial, the siblings had normal
relationships with each other. Although Joseph was diagnosed with attention deficit disorder,
he was taking prescribed medication and doing well in school. Foster mother said the parents
had called the Children a total of two or three times before contact was discontinued. Mother
sent two letters to the Children, but no gifts or clothing. Foster mother reported that the
Children were often angry and their behavior deteriorated after periods of visitation. They
reported at each visit Mother would tell them they were coming back “home” in a month.
She also told Joseph he was being turned into a “meth addict” and didn’t need to take the
medications his doctor had prescribed. According to foster mother, the Children did not ask
about Mother and Father after the visits were ended some eight months earlier. The Children
were doing well and the foster parents were “strongly” considering adopting all three of them
if they became available.
In short, while the trial court credited Mother and Father with “doing better” in some
aspects by the time of trial, the court concluded that, when properly viewed from the
Children’s perspective, consideration of the Children’s best interest clearly and convincingly
shows that Mother’s and Father’s ties should be permanently severed. On our considered
review of the record, the evidence does not preponderate against the trial court’s findings in
support of its decision.
IX.
The judgment of the trial court is affirmed with the exception that the finding of
abandonment by willful failure to support is reversed as to both Mother and Father. In all
other respects, the judgment is affirmed. Costs on appeal are taxed to the appellants, E.G.
and J.G. This case is remanded to the trial court, pursuant to applicable law, for enforcement
of the court’s judgment and the collection of costs assessed below.
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__________________________________________
CHARLES D. SUSANO, JR., PRESIDING JUDGE
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