In Re Natasha A. ( 2013 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs November 14, 2012
IN RE NATASHA A.
Appeal from the Juvenile Court for Davidson County
No. 142215 Betty K. Adams Green, Judge
No. M2012-01351-COA-R3-PT - Filed February 27, 2013
The mother of the minor child at issue appeals the termination of her parental rights. The
juvenile court found several grounds for terminating the mother’s parental rights and that
termination was in the best interest of the child. We affirm the termination of the mother’s
parental rights.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
F RANK G. C LEMENT, J R., J., delivered the opinion of the Court, in which A NDY D. B ENNETT
and R ICHARD H. D INKINS, JJ., joined.
Nicholas Perenich, Jr., Nashville, Tennessee, for the appellant, Stephanie K. A.
Leslie Curry-Johnson, Lead Counsel, Martha A. Campbell, Douglas Earl Dimond, Matthew
R. Muenzen, Nashville, Tennessee, for the appellee, State of Tennessee, Department of
Children Services.
OPINION
Stephanie K. A. is the mother of Natasha A., born in January 1996. Leonard A., now
deceased, was listed as Natasha’s father on her birth certificate. Stephanie K. A. ( “Mother”),
who is a registered sex offender,1 has not had custody of Natasha since April 2006, when she
gave temporary custody of Natasha and her other children to Desiree S. Natasha and
Mother’s other children, who are not at issue in this case, lived with Ms. S., but only for a
couple of weeks, before Ms. S. placed them with the Tennessee Baptist Children’s Home.
The last time Natasha was in her Mother’s custody Natasha was ten years old; Natasha is
1
On May 21, 1998, Mother was convicted of facilitation of rape of a child and sentenced to eight
years at thirty percent in the Department of Corrections.
now seventeen years old and Mother admits she has not attempted to regain custody of
Natasha since that time. She states the primary reason for not seeking to regain custody is her
longstanding drug problems, specifically her cocaine addiction.
During her stay at the Children’s Home, Natasha developed some issues that required
hospitalization. When the hospital released her, neither the Children’s Home nor Ms. S.
would accept her back. Natasha could not be placed with Mother due to her lack of stable
housing, extended history of drug abuse, and lengthy criminal history, therefore, on April 6,
2010, Natasha was placed in the custody of the Department. On April 9, 2010, the
Department filed a petition to declare Natasha dependent and neglected and for emergency
removal. The petition alleged that the current custodian could not meet the child’s special
needs. The parties waived the preliminary hearing and agreed that probable cause existed to
sustain the emergency removal. Natasha, who remains in the Department’s custody, was
placed in three foster homes in the first two weeks, then she was moved to Madison Oaks
Academy, a residential group home in Jackson, Tennessee, where she stayed six months. She
then was placed in Paidia’s Place, another group home where she stayed for six months, then
she was moved to a secure facility in Bartlett, Tennessee. After Bartlett, she returned to
Paidia’s Place, then she briefly resided in two foster homes and then back to Paidia’s place.
At the time of trial, Natasha resided in the secure facility in Bartlett.
On May 27, 2010, the Department set up an initial permanency plan aimed at
reunifying Natasha with Mother or exit custody with a relative. At a permanency plan hearing
on May 28, 2010, in which Mother participated, the trial court ratified the initial permanency
plan. The plan required Mother to do the following: remain drug free, participate in drug and
alcohol treatment, undergo a parenting assessment, participate in family counseling, submit
to random drug screens, obtain stable housing for six months, follow recommendations from
the after care plan developed with her counselor while incarcerated, obtain stable income,
comply with rules of any probation and/or parole, have regular visitation with the child, and
refrain from incurring any civil or criminal charges. The juvenile court determined that the
services and goals of the plan were reasonably related to the goals insofar as the plan
addressed the needs of Natasha, her current placement was appropriate, and it was in her best
interest because she was doing well in placement at Madison Oaks. The court also noted that
Mother would have a difficult time convincing the court that Mother had changed after her
eight-year history. Further, the juvenile court found that Mother used cocaine approximately
ninety days ago and marijuana more recently. Also during this hearing, the juvenile court
judge explained to Mother, inter alia, the law of abandonment and that termination of her
parental rights may be a consequence of willfully failing to visit or support Natasha, and that
Mother had a right to be represented by counsel at any termination hearing. Mother signed
the Criteria and Procedures and acknowledged that she understood the grounds upon which
a petition to terminate her rights could be based.
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On June 30, 2010, with Mother’s consent, Natasha was declared dependent and
neglected. Several months later, on February 18, 2011, a second permanency plan was
ratified but Mother did not appear or participate even though Mother was notified of the
court date. The second permanency plan included the following additional requirements:
Mother work towards obtaining her license or adequate transportation, keep her information
accurate for the sex offender registry, inform family support workers of any possible changes
in address or phone number by providing a new legitimate address or phone number within
three days of such changes, cooperate with the Department, and undergo drug screening
before supervised visitation. Further, adoption was added as an alternative goal. Also, during
the hearing, the juvenile court determined that Mother was not substantially compliant
because, inter alia, she had only submitted to one drug screen, she had not participated in
drug and alcohol treatment, and Mother was not visiting Natasha due to her refusal to comply
with the drug screens. The court additionally determined that Natasha is a special needs child
and, thus, needed foster care that accommodated her special needs.
On May 6, 2011, the Department filed its petition to terminate parental rights. The
grounds listed in the petition were abandonment by failure to visit, support, or provide
suitable housing, Tenn. Code Ann. §§ 36-1-113(g)(1) & 36-1-102(1)(A)(i)–(ii); substantial
noncompliance with the permanency plan, Tenn. Code Ann. § 36-1-113(g)(2); that the
conditions which led to Natasha’s removal still persist and prevent Natasha’s return to
Mother’s care, Tenn. Code Ann. § 36-1-113(g)(3); severe child abuse, Tenn. Code Ann. §§
36-1-113(g)(4) & 37-1-102; and that Mother had been sentenced for child abuse, Tenn. Code
Ann. § 36-1-113(g)(5). The petition also listed several reasons why termination was in
Natasha’s best interest.
A trial on the petition was held over three days, September 19, 2011, November 8,
2011, and February 2, 2012, before the Honorable Betty Adams Green in the Juvenile Court
of Davidson County, Tennessee. Those who testified included Charity Kimbrell, the
Department foster care worker for Natasha, Mother, Allegra M., a family friend, and Natasha
briefly testified.
Ms. Kimbrell testified regarding her involvement in the case since July 2010.
According to Ms. Kimbrell, her communication with Mother had been sporadic and she was
never in constant communication with her. This was because the phone numbers and
addresses Mother provided were not always correct or the phone was temporarily
deactivated, and on several occasions months past while the Department did not know where
Mother resided or how to reach her in order to assist her.
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Despite Mother’s lack of communication or cooperation, Ms. Kimbrell explained that
the Department attempted to assist Mother in finding suitable housing; however, obtaining
suitable housing was complicated due to Mother being a registered sex offender. Ms.
Kimbrell testified that she sent Mother two separate months worth of available housing
listings as well as a felony friendly employer list. Ms. Kimbrell described the felony friendly
employer list as a two-page list of people who had been known to hire felons in the past. Due
to a number of factors, including Mother being a registered sex offender, Mother failed to
obtain housing that was suitable for Natasha.
The evidence established that Mother made no attempts to visit Natasha or provide
support for Natasha from January 6 to May 6, 2011, the four-month period preceding the
filing of the petition. In fact, Mother did not visit or financially support Natasha at anytime
after Natasha went into the Department’s custody in April 2010.
The permanency plans required Mother to undergo a drug screen prior to each
visitation with Natasha, however, Mother refused or failed to submit to drug screens except
for one. That was on February 11, 2011 and the result was positive for marijuana use. When
asked why she refused to other drug screens, Mother stated “they wanted an enormous
amount of urine that I could not – I could not produce . . . . [a] lot of other times, Ms.
Kimbrell would text me and I would not be even in Nashville or couldn’t get to within the
four hours of time I had to make arrangements to get a ride to get there.” After that, the
Department moved the drug testing to Columbia, closer to where Mother was residing, yet
Mother failed to take any drug test in Columbia.
Although Mother received Natasha’s disability benefit from the Veteran’s
Administration every month since the death of Natasha’s father in 2006, Mother never
provided any financial support for Natasha during that time, including the requisite four
month period preceeding the filing of the petition.2
Based upon the foregoing, pursuant to an order entered on June 4, 2012, the juvenile
court terminated Mother’s parental rights finding that Mother willfully abandoned Natasha
by failing to visit, failing to support and failing to provide suitable housing, that Mother was
substantially non-compliant with the responsibilities set forth in the permanency plans, that
conditions continue to exist that prevent the child from being returned to Mother’s custody,
and that termination was in the best interest of the child. On June 19, 2012, Mother filed this
appeal.
2
Shortly thereafter, the Department notified the Veteran’s Administration that Mother had not had
custody of Natasha since 2005; the disability benefit was stopped on May 23, 2011.
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A NALYSIS
The party seeking to terminate parental rights must prove two elements. That party,
the petitioner, has the burden of proving that there exists a statutory ground for termination.
Tenn. Code Ann. § 36-1-113(c)(1); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).
Furthermore, the petitioner must prove that termination of parental rights is in the child’s best
interest. Tenn. Code Ann. § 36-1-113(c)(2); In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn.
2006). Thus, a court may terminate a parent’s parental rights if it finds by clear and
convincing evidence that one of the statutory grounds for termination of parental rights has
been established and that the termination of such rights is in the best interests of the child.
In re A. W., 114 S.W.3d 541, 544 (Tenn. Ct. App. 2003); In re C.W.W., 37 S.W.3d 467,
475–76 (Tenn. Ct. App. 2000)
I. G ROUNDS FOR T ERMINATION OF P ARENTAL R IGHTS
The trial court found several grounds upon which Mother’s parental rights may be
terminated. We shall address two of the grounds found by the trial court, abandonment by
willful failure to visit and abandonment by willful failure to support.
Tennessee Code Annotated § 36-1-113(g)(1) establishes a ground for termination of
parental rights based upon abandonment as defined in Tennessee Code Annotated § 36-1-
102. The definition of abandonment set forth in Tennessee Code Annotated § 36-1-
102(1)(A)(i):
“For a period of four (4) consecutive months immediately preceding the filing
of a proceeding or pleading to terminate the parental rights of the parent(s) or
guardian(s) of the child who is the subject of the petition for termination of
parental rights or adoption, that the parent(s) or guardian(s) have willfully
failed to visit or have willfully failed to support or have willfully failed to
make reasonable payments toward the support of the child . . .”
Failure to visit or support a child is “willful” when a person is aware of his or her duty
to visit or support, has the capacity to do so, makes no attempt to do so, and has no justifiable
excuse for not doing so. In re Audrey S., 182 S.W.3d 838, 864 (Tenn. Ct. App. 2005).
“Where the failure to visit is not willful, a failure to visit a child for four months does not
constitute abandonment.” R.G.W. v. S.M., No. M2009-01153-COA-R3-PT, 2009 WL
4801686, at *8 (Tenn. Ct. App. Dec. 14, 2009) (citing In re Adoption of A.M.H., 215 S.W.3d
793, 810 (Tenn. 2007)). “A parent who attempted to visit and maintain relations with [her]
child, but was thwarted by the acts of others and circumstances beyond [her] control, did not
willfully abandon [her] child.” Id. Further, “when considering the failure of the parent to
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support the child, we should determine ‘that the parent is aware of his or her duty to support,
has the ability to provide support, and has voluntarily and intentionally chosen not to provide
support without a justifiable excuse.’” Id. (quoting In re T.Z.T., No. M2007-00273-COA-R3-
PT, 2007 WL 3444716, at *6) (Tenn. Ct. App. Nov. 15, 2007)).
Although certain grounds for termination require the Department to provide evidence
that it has made “reasonable efforts” to make it possible for the child to return home,
Tennessee Code Annotated § 37-1-166(g)(4) relieves the Department of this obligation in
cases involving “aggravating circumstances” as defined by Tennessee Code Annotated § 36-
1-102(9), which definition includes “abandonment.” See In re C.A.H., No. M2009-00769-
COA-R3-PT, 2009 WL 5064953, at *4 (Tenn. Ct. App. Dec. 22, 2009) (citing In re B.P.C.,
No. M2006-02084-COA-R3-PT, 2007 WL 1159199, at *11 n.5 (Tenn. Ct. App. Apr. 18,
2007); State v. D.D.T., No. M2006-006710COA-R3-PT, 2006 WL 2135427, at *1 (Tenn. Ct.
App. July 31, 2006)) (“Thus, . . . DCS [has] no obligation to make reasonable efforts for
termination based on abandonment.”).
It is undisputed that Mother did not visit or make payments toward Natasha’s support
during the relevant time period, January 6, through May 6, 2011; nevertheless, Mother insists
that the proof does not support a finding that her failure to do so was willful. We will first
examine the proof regarding visitation, then support.
Mother states her failure to visit cannot be said to be willful because Natasha was
residing in Bartlett, Tennessee from January through May 2011, and Mother did not have a
driver’s license or reliable transportation. Ms. Kimbrell, however, testified that the
Department was prepared to assist Mother with transportation in order to visit Natasha, if
Mother cooperated with the drug screen requirement, but she did not.
Visitation was ordered in Natasha’s May 2010 permanency plan, however, Mother’s
right to visitation was contingent upon Mother submitting to random drug screens. In the
eighteen months between the time Natasha entered the Department’s custody and the filing
of the petition to terminate, Mother submitted to only one drug screen, which she failed, and
Mother never visited Natasha.
The drug screens were to take place in Nashville. Mother took one drug test in
Nashville, which she failed. Thereafter, Mother complained that it was too difficult for her
to travel to Nashville (the record is unclear as to where Mother was residing at this time).
Therefore, the Department moved the drug screens to Columbia, Tennessee, near where
Mother was then living. Mother appeared for only one drug screen in Columbia; however,
she left without giving a urine sample. Mother explained later that the testing center required
too much urine and she never appeared for another drug test.
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Although we understand the distance between Columbia and Bartlett made it difficult
for Mother to visit Natasha on a regular basis, Mother’s excuses for not visiting Natasha are
disingenuous and unjustifiable. To be blunt, the reasons why Mother did not visit are that she
failed to remain in contact with DCS, she failed the only drug screen she took, and she
repeatedly refused to submit to any more drug screens. We also note that Mother admitted
that she did not visit her other daughters, who resided in Brentwood, for over two years, and
she gave no explanation for failing to visit them.
As for Mother’s failure to provide support for Natasha, she oscillates between blaming
the Department for her failure to support Natasha and claiming she was unable to make
payments. At the hearing on September 19, 2011, Mother admitted that from the time of the
death of the children’s father in 2006, until May 23, 2011, she was receiving $1,700 a month
in benefits from the Veteran’s Administration3 and that she provided no financial support for
any of the children, including Natasha.
We, therefore, affirm the trial court’s findings that the Department proved the grounds
of abandonment by willful failure to visit and willful failure to support Natasha.
II. B EST INTEREST OF THE C HILD
Having affirmed two statutory grounds for termination of Mother’s rights and only
one ground need be proved, it is not necessary for us to examine the other grounds; therefore,
we shall determine whether it is in Natasha’s best interest that Mother’s rights be terminated.
The Tennessee General Assembly has provided a list of factors for the court to
consider when conducting a best interest of the child analysis. See Tenn. Code Ann. § 36-1-
113(i)(1)-(9). The nine statutory factors, which are well known and need not be repeated
here, are not exclusive or exhaustive, and other factors may be considered by the court. See
In re M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005). Moreover, not every statutory
factor need apply; a finding of but a few significant factors may be sufficient to justify a
finding that termination of the parent-child relationship is in the child’s best interest. See In
re M.A.R., 183 S.W.3d at 667. The child’s best interest is to be determined from the
perspective of the child rather than the parent. See State Dep’t of Children’s Servs. v. L.H.,
No. M2007-00170-COA-R3-PT, 2007 WL 2471500, at *7 (Tenn. Ct. App. Dec. 3, 2007)
(citing White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004)).
3
The benefit payments were for three minor children, a portion of which was for Natasha.
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Natasha has not lived with Mother since 2006, Mother has made no efforts since 2006
to regain custody of Natasha, she has not visited or supported Natasha since 2010 when the
Department took custody of Natasha, Mother has not resolved her longstanding drug
problems, specifically, her cocaine addiction, and she is a registered sex offender. Therefore,
considering these relevant factors from the child’s perspective, the evidence clearly and
convincingly established that it is in Natasha’s best interest that Mother’s parental rights be
terminated.
I N C ONCLUSION
We, therefore, affirm the termination of Mother’s parental rights and this matter is
remanded with costs of appeal assessed against the Department of Children’s Services due
to Mother’s indigency.
______________________________
FRANK G. CLEMENT, JR., JUDGE
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