In Re Aireona H.W. ( 2014 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs June 30, 2014
IN RE AIREONA H. W.1
Appeal from the Juvenile Court for Hamilton County
No. 254987 Hon. Robert D. Philyaw, Judge
No. E2014-00241-COA-R3-PT-FILED-AUGUST 20, 2014
This is a termination of parental rights case in which the Tennessee Department of Children’s
Services filed a petition to terminate Mother’s parental rights to the Child. The trial court
found that clear and convincing evidence existed to support the termination of Mother’s
parental rights on several statutory grounds and that termination of her rights was in the
Child’s best interest. Mother appeals. We affirm the decision of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed; Case Remanded
J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., C.J., and T HOMAS R. F RIERSON, II, J., joined.
Berry Foster, Chattanooga, Tennessee, for the appellant, Amber W.
Robert E. Cooper, Jr., Attorney General and Reporter, and Ryan L. McGehee, Assistant
Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee, Department
of Children’s Services.
John B. Wysong, Chattanooga, Tennessee, guardian ad litem for the minor, Aireona H. W.
1
This court has a policy of protecting the identity of children in parental rights termination cases by
initializing the last name of the parties.
OPINION
I. BACKGROUND
Aireona H. W. (“the Child”) was born to Amber W. (“Mother”) and Eugene B.
(“Father”) in March 2011. The Child tested positive for illegal substances at birth. The
Tennessee Department of Children’s Services (“DCS”) provided services to Mother to
address the issue of drugs and domestic violence. Shortly thereafter, Mother moved to
Georgia, causing DCS to close the case. A few months later, DCS received a second referral
regarding Mother’s care of the Child. DCS closed the case because Mother could not be
located. A few months later, DCS received a third referral regarding Mother’s care of the
Child. DCS eventually located Mother, who had several active warrants for her arrest in
Hamilton County, and removed the Child in March 2012. The Child was adjudicated as
dependent and neglected, based upon Mother’s use of illegal drugs while pregnant with and
while parenting the Child and her inability to provide a safe and stable home.
The record reflects that DCS developed a permanency plan on April 16, 2012, and
another on February 21, 2013. These plans were ratified by the trial court. Pursuant to the
plans, Mother was required to complete an alcohol and drug assessment and follow all
recommendations, comply with random drug screening, comply with mental health
counseling, remit child support, visit the Child, attend parenting classes, resolve all legal
issues, and obtain and maintain housing, employment, and transportation. DCS filed a
petition to terminate Mother and Father’s parental rights to the Child in April 2013.2 DCS
alleged that termination of Mother’s parental rights was supported by the statutory grounds
of abandonment for failure to visit, substantial noncompliance with the permanency plans,
and the persistence of conditions which led to removal.
A hearing was held at which several witnesses testified. Mother, who was in custody
at the time of trial, stated that in addition to the Child, she had four other children who no
longer lived with her. She testified that when the Child was removed, she tested positive for
marijuana and was arrested based upon an outstanding warrant. She was released in June
2012 but was currently incarcerated for failure to pay child support for one of the Child’s
siblings. She hoped to be released in “the next few weeks” because she believed her arrest
was a mistake when her child support payments were automatically deducted from her
paycheck. She stated that prior to her current incarceration, she worked at Subway and
offered her assistance to an “elderly lady” on a regular basis in return for payment. She
claimed that upon her release, she had a place to live with her roommate, Ashley C.
2
Father failed to legitimate the Child and never established a relationship with the Child. He did not appear
at the termination hearing at which his rights were terminated. He is not a party to this appeal.
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Mother testified that she had completed her parenting classes, had remained drug free,
had maintained employment, and had visited the Child pursuant to the permanency plans.
She acknowledged that she completed her parenting class in June 2013, two months after the
termination petition had been filed. She asserted that her case manager merely gave her a
listing of parenting classes in the area. She explained that the list was approximately four
years old and that half of the places listed no longer offered classes. She conceded that she
had tested positive for marijuana on several occasions since the Child had been removed.
She denied using marijuana and claimed that the tests were faulty.
Mother testified that she always provided DCS with a current address. She asserted
that from June 2012 through May 2013, DCS only came to her residence on one occasion.
She explained that she was not present for that visit because she did not know a visit had
been scheduled. She asserted that DCS never assisted her in finding employment. She
acknowledged that she was unemployed from March 2012 until December 2012. She
explained that she was in custody until June 2012 and that she gave birth to her fifth child
in August 2012. She asserted that once she found employment in December 2012, she
maintained her position until she tore her rotator cuff six weeks later. After recovering from
that injury, she was hired by Subway in March 2013 and maintained her employment until
her current arrest for failure to pay child support. She believed that she could return to work
at Subway once she was released and that at the very least, she had employment as a
caretaker for her friend’s mother, the aforementioned “elderly lady.”
Mother acknowledged that she was currently unable to parent the Child and that she
missed some visitation time with the Child. She explained that she had transportation issues
and was incarcerated or hospitalized on several different occasions throughout the Child’s
placement with DCS. She claimed that she asked DCS for assistance with transportation but
that she did not receive help until January 2013, when she was finally given a bus pass. She
asserted that despite her inability to maintain visitation, she enjoyed a “wonderful bond” with
the Child, who often expressed a desire to come home with her. She conceded that the Child
had trouble adjusting to her visitations at first.
Lisca Gaffney testified that she worked for DCS and that she was assigned to
Mother’s case in September 2012. She claimed that Mother failed to maintain contact with
her and that Mother also failed to maintain regular visitation with the Child. She recalled
that Mother often blamed her failure to visit on her health, transportation, or lack of housing.
She offered several bus passes and ultimately provided one bus pass to assist Mother in
maintaining visitation, but Mother still failed to maintain regular visitation. She recalled
observing the Child’s visitation with Mother and claimed that at first, the Child cried
inconsolably and did not want to participate in visitation. She stated that the Child was more
amenable to visitation once she included Lindsay B. (“Foster Mother”) in the visitations.
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Ms. Gaffney testified that she explained the requirements contained in the permanency
plans to Mother. She recalled providing Mother with a list of potential employers and
advising Mother concerning several options for completing the parenting classes. She also
administered four drug screens to Mother, who failed all four screens. She recalled that
Mother tested positive for marijuana on each test and had also tested positive for “benzos,
[] methadone, and cocaine” on different occasions. She stated that Mother denied using
drugs. She attempted to schedule a retest for Mother but explained that Mother was arrested
again before she was able to schedule the test. She acknowledged that Mother attempted to
complete an alcohol and drug assessment but that the facility was unable to evaluate Mother.
She recalled that the Child was born with drugs, namely marijuana and cocaine, in her
system. She related that Mother admitted using cocaine once and claimed that her doctor
advised her that marijuana was safe to smoke during pregnancy.
Ms. Gaffney testified that Mother did not provide her with proof of employment until
August 2013 and that she had been unable to visit Mother’s residence. She recalled that she
scheduled one visit for the residence in Ooltewah but that Mother was not present at the
appointed time. She related that she came to that residence a second time for an
unannounced visit only to find that Mother was not home. She asserted that at times, Mother
claimed to not have a residence and was reliant upon friends for a place to stay. She related
that Mother recently provided her with a lease between Mother and a friend. She was unable
to schedule a home visit because Mother was incarcerated again.
Ms. Gaffney testified that the Child currently resided in a foster home with parents
that wished to adopt her. She explained that the Child had lived in the home since her
removal from Mother and that the Child was “very bonded” to the family. She
acknowledged that Mother had made some progress but explained that Mother’s progress
occurred in the past few months. She claimed that Mother had not made sufficient progress
on the permanency plans that would justify returning the Child to Mother. She related that
the Child had been in custody for approximately 18 months and had ultimately found
permanency in a stable home with a family that was committed to her.
Foster Mother testified that the Child had resided in her home since March 2012. She
believed that the Child had bonded with the family, especially her children. She recalled that
the Child was initially reserved when visiting with Mother but that the Child eventually
adjusted to the visitations. She denied ever hearing the Child ask Mother to take her home.
She acknowledged that she had not supervised the visitations in several months. She claimed
that she was willing to adopt the Child and that she already considered the Child as part of
her family.
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Following the presentation of the above evidence, the trial court terminated Mother’s
parental rights on the statutory grounds of abandonment for failure to visit, substantial
noncompliance with the permanency plans, and the persistence of conditions which led to
removal. The court further held that termination of Mother’s parental rights was in the best
interest of the Child. This timely appeal followed.
II. ISSUES
We consolidate and restate the issues raised on appeal by Mother as follows:
A. Whether the trial court erred in relying upon the statutory ground of
abandonment for failure to visit when it was not added as a requirement in the
initial permanency plan.
B. Whether DCS sufficiently established that it made reasonable efforts to
reunify Mother with the Child.
C. Whether clear and convincing evidence supports the trial court’s finding
that termination of Mother’s parental rights was in the Child’s best interest
pursuant to Tennessee Code Annotated section 36-1-113(i).
III. STANDARD OF REVIEW
Parents have a fundamental right to the care, custody, and control of their children.
Stanley v. Illinois, 405 U.S. 645 (1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App.
1988). This right “is among the oldest of the judicially recognized liberty interests protected
by the Due Process Clauses of the federal and state constitutions.” In re M.J.B., 140 S.W.3d
643, 652-53 (Tenn. Ct. App. 2004). “Termination of a person’s rights as a parent is a grave
and final decision, irrevocably altering the lives of the parent and child involved and
‘severing forever all legal rights and obligations’ of the parent.” Means v. Ashby, 130
S.W.3d 48, 54 (Tenn. Ct. App. 2003) (quoting Tenn. Code Ann. § 36-1-113(I)(1)). “‘[F]ew
consequences of judicial action are so grave as the severance of natural family ties.’” M.L.B.
v. S.L.J., 519 U.S. 102, 119 (1996) (quoting Santosky v. Kramer, 455 U.S. 745, 787 (1982)).
While parental rights are superior to the claims of other persons and the government,
they are not absolute and may be terminated upon appropriate statutory grounds. See Blair
v. Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002). Due process requires clear and convincing
evidence of the existence of the grounds for termination of the parent-child relationship. In
re Drinnon, 776 S.W.2d at 97. A parent’s rights may be terminated only upon
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(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.
Tenn. Code Ann. § 36-1-113(c). “[A] court must determine that clear and convincing
evidence proves not only that statutory grounds exist [for the termination] but also that
termination is in the child’s best interest.” In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
The existence of at least one statutory basis for termination of parental rights will support the
trial court’s decision to terminate those rights. In re C.W.W., 37 S.W.3d 467, 473 (Tenn. Ct.
App. 2000), abrogated on other grounds by In re Audrey S., 182 S.W.3d 838 (Tenn. Ct. App.
2005).
The heightened burden of proof in parental termination cases minimizes the risk of
erroneous decisions. In re C.W.W., 37 S.W.3d at 474; In re M.W.A., Jr., 980 S.W.2d 620,
622 (Tenn. Ct. App. 1998). Evidence satisfying the clear and convincing evidence standard
establishes that the truth of the facts asserted is highly probable. State v. Demarr, No.
M2002-02603-COA-R3-JV, 2003 WL 21946726, at *9 (Tenn. Ct. App. Aug. 13, 2003). This
evidence also eliminates any serious or substantial doubt about the correctness of the
conclusions drawn from the evidence. In re Valentine, 79 S.W.3d at 546; In re S.M., 149
S.W.3d 632, 639 (Tenn. Ct. App. 2004); In re J.J.C., 148 S.W.3d 919, 925 (Tenn. Ct. App.
2004). It produces in a fact-finder’s mind a firm belief or conviction regarding the truth of
the facts sought to be established. In re A.D.A., 84 S.W.3d 592, 596 (Tenn. Ct. App. 2002);
Ray v. Ray, 83 S.W.3d 726, 733 (Tenn. Ct. App. 2001); In re C.W.W., 37 S.W.3d at 474.
In 2010, the Tennessee Supreme Court provided guidance to this court in reviewing
cases involving the termination of parental rights:
A reviewing court must review the trial court’s findings of fact de novo with
a presumption of correctness under [Rule 13(d) of the Tennessee Rules of
Appellate Procedure]. See In re Adoption of A.M.H., 215 S.W.3d [793,] 809
[(Tenn. 2007)]. In light of the heightened burden of proof in proceedings
under [Tennessee Code Annotated section] 36-1-113, the reviewing court must
then make its 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. State Dep’t of Children’s Servs. v. Mims, 285 S.W.3d [435,] 447-48
[(Tenn. Ct. App. 2008)]; In re Giorgianna H., 205 S.W.3d 508, 516 (Tenn. Ct.
App. 2006); In re S.M., 149 S.W.3d 632, 640 n. 13 (Tenn. Ct. App. 2004).
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Appellate courts conduct a de novo review of the trial court’s decisions
regarding questions of law in termination proceedings. However, these
decisions, unlike the trial court’s findings of fact, are not presumed to be
correct. In re Angela E., 303 S.W.3d [240,] 246 [(Tenn. 2010)]; In re
Adoption of A.M.H., 215 S.W.3d at 809.
In re Bernard T., 319 S.W.3d 586, 596-97 (Tenn. 2010).
IV. DISCUSSION
A.
Although not raised as a separate issue, Mother asserts that the trial court erred in
relying upon the statutory ground of abandonment for failure to visit because it was not
added as a requirement in the initial permanency plan. She acknowledges that visitation was
included as a requirement in the second plan but notes that the second plan was not ratified
until April 10, 2013, six days prior to the filing of the termination petition. DCS responds
that it promptly scheduled visitation once Mother was released from incarceration but that
Mother failed to regularly visit the Child.
Abandonment for failure to visit is a statutory ground of termination that may be
applied regardless of whether a permanency plan is ever created to assist a parent in reuniting
with his or her child. See generally Tenn. Code Ann. § 36-1-102(1)(A)(i). Indeed, for the
purposes of termination proceedings, abandonment means that:
(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)
either 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[.]
Tenn. Code Ann. § 36-1-102(1)(A)(i). A parent’s willful failure to visit the child “means the
willful failure, for a period of four (4) consecutive months, to visit or engage in more than
token visitation.” Tenn. Code Ann. § 36-1-102(1)(E). Token visitation is defined as
“visitation, under the circumstances of the individual case, [that] 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(1)(C).
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In this case, Mother does not contend that she maintained regular visitation with the
Child. Mother was incarcerated when the initial permanency plan was created. Once Mother
was released, DCS scheduled visitation with Mother, who only engaged in token visitation
with the Child. Accordingly, we conclude that clear and convincing evidence supported this
statutory ground of termination. Mother does not challenge the trial court’s ruling
concerning the remaining statutory grounds for termination, namely substantial
noncompliance with the permanency plans and the persistence of conditions which led to
removal. In the event of further appellate review, we have reviewed the evidence supporting
each ground of termination and found clear and convincing evidence supporting each ground.
B.
Mother claims that DCS failed to assist her in her efforts to reunite with the Child.
She asserts that DCS merely provided her with a list of service providers in its effort to assist
her in completing her alcohol and drug assessment and her parenting classes. She also argues
that DCS failed to assist her in her efforts to obtain and maintain employment, failed to
maintain contact with her, failed to inspect her residence to ensure that it was suitable for
visitation with the Child, failed to assist her in her efforts to visit the Child, and failed to
honor her request for retesting following her failure of the drug screens. DCS responds that
it made reasonable efforts to assist Mother but that Mother “made no effort whatsoever to
complete even the initial step of having an alcohol and drug assessment, has failed every
drug screen, denies using illegal drugs and failed to maintain contact.”
Once a child has been removed from a parent’s home, DCS is tasked with making it
possible for the child to return home before instituting termination proceedings. Tenn. Code
Ann. § 37-1-166(a)(2). At the termination proceeding, DCS must prove by clear and
convincing evidence that reasonable efforts were made to reunite the child with the parent.
Tenn. Code Ann. § 37-1-166(b). For purposes of DCS’s involvement, the term reasonable
efforts refers to “the exercise of reasonable care and diligence by [DCS] to provide services
related to meeting the needs of the child and the family.” Tenn. Code Ann. § 37-1-166(g)(1).
“The reasonableness of [DCS’s] efforts depends upon the circumstances of the particular
case.” In re Giorgianna H., 205 S.W.3d 508, 519 (Tenn. Ct. App. 2006).
“While [DCS’s] reunification efforts need not be “herculean,” DCS must do more
than simply provide the parents with a list of services and send them on their way.” Id.“[DCS] employees must use their superior insight and training to assist the parents in
addressing and completing the tasks identified in the permanency plan.” Id. These
“employees have an affirmative duty to utilize their education and training to assist parents
in a reasonable way to address the conditions that led to the child’s removal and to complete
the tasks stated in the plan.” In re R.L.F., 278 S.W.3d 305, 316 (Tenn. Ct. App. 2008). In
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keeping with this ideal, DCS must provide an affidavit, identifying its reasonable efforts, for
the court’s consideration. Tenn. Code Ann. § 37-1-166(c); see In re R.L.F., 278 S.W.3d at
317. However, “‘[r]eunification of a family is a two-way street, and the law does not require
[DCS] to carry the entire burden of this goal.” State Dep’t. of Children’s Servs. v. S.M.D.,
200 S.W.3d 184, 198 (Tenn. Ct. App. 2006) (quoting In re R.C.V., No. W2001-02102-COA-
R3-JV, 2002 WL 31730899, at *11 (Tenn. Ct. App. Nov. 18, 2002)). “Thus, parents desiring
the return of their children must also make reasonable and appropriate efforts to rehabilitate
themselves and to remedy the conditions that required [DCS] to remove their children from
their custody.” In re Giorgianna H., 205 S.W.3d at 519.
In determining whether the efforts used by DCS were reasonable, the court should
consider DCS’s affidavit and the following factors:
(1) the reasons for separating the parent from his or her children,
(2) the parent’s physical and mental abilities,
(3) the resources available to the parent,
(4) the parent’s efforts to remedy the conditions that required the removal of
the children,
(5) the resources available to [DCS],
(6) the duration and extent of the parent’s remedial efforts,
(7) the closeness of the fit between the conditions that led to the initial removal
of the children, the requirements of the permanency plan, and [DCS’s] efforts.
In re Giorgianna H., 205 S.W.3d at 519.
The permanency plans at issue in this case were not particularly lengthy or hard to
follow. Ms. Gaffney advised Mother on the steps she needed to take to reunite with the
Child. When Mother was not incarcerated, DCS provided Mother with opportunities for
visitation, a bus pass, an alcohol and drug assessment, drug screens, and a list of potential
employers in the area. Mother was sporadic in her visitation efforts, was unable to complete
the assessment, and failed every drug screen she was given. Ms. Gaffney testified that she
advised Mother concerning several options for completing the parenting classes. Yet,
Mother failed to fulfill this requirement until well after the termination petition was filed.
Ms. Gaffney attempted to visit one of Mother’s several residences throughout her
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involvement with DCS. However, Mother was not present for the scheduled appointment.
We believe that Ms. Gaffney attempted to assist Mother and explained the steps of the
permanency plans but that Mother simply failed to put forth any effort to comply with the
most important requirements that would have allowed her to reunite with the Child, namely
to remain drug free and provide a stable home for the Child. Accordingly, we conclude that
the record contains clear and convincing evidence that DCS made reasonable efforts to assist
Mother in her attempts to reunite with the Children.
C.
Having concluded that there was clear and convincing evidence supporting the
statutory grounds to terminate Mother’s parental rights and that DCS made reasonable efforts
to assist Mother in reuniting with the Child, we must consider whether termination of
Mother’s rights was in the best interest of the Child. In making this determination, we are
guided by the following non-exhaustive list of factors:
(i) In determining whether termination of parental or guardianship rights is in
the best interest of the child . . . the court shall consider, but is not limited to,
the following:
(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 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
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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 [section]
36-5-101.
Tenn. Code Ann. § 36-1-113(i). “This list is not exhaustive, and the statute does not require
a trial court to find the existence of each enumerated factor before it may conclude that
terminating a parent’s parental rights is in the best interest of a child.” In re M.A.R., 183
S.W.3d 652, 667 (Tenn. Ct. App. 2005). The General Assembly has also stated that “when
the best interest[] of the child and those of the adults are in conflict, such conflict shall
always be resolved to favor the rights and the best interest[] of the child, which interests are
hereby recognized as constitutionally protected.” Tenn. Code Ann. § 36-1-101(d); see also
White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004) (holding that when considering
a child’s best interest, the court must take the child’s perspective, rather than the parent’s).
A number of the best interest factors weigh against Mother. She had not made the
adjustment of circumstances necessary to provide a stable home for the Child as evidenced
by her incarceration at the time of the hearing. Tenn. Code Ann. § 36-1-113(i)(1), (2). She
failed to maintain regular visitation with the Child. Tenn. Code Ann. § 36-1-113(i)(3). The
Child resides in a safe and stable foster home that expressed a desire to adopt her. Tenn.
Code Ann. § 36-1-113(i)(5). Questions remain as to whether Mother can provide a safe and
stable home free from drug abuse. Tenn. Code Ann. § 36-1-113(i)(7). We acknowledge that
Mother obviously cared for the Child. However, her inability to accept responsibility for her
actions place doubt upon her ability to effectively parent the Child in the near future. The
Child needs permanency and stability, which she can receive from the foster parents who
have successfully parented her while Mother allowed the Child to languish in custody. With
all of the above considerations in mind, we conclude that there was clear and convincing
evidence to establish that termination of Mother’s parental rights was in the best interest of
the Child. Accordingly, we affirm the decision of the trial court.
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V. CONCLUSION
The judgment of the trial court is affirmed, and the case is remanded for such further
proceedings as may be necessary. Costs of the appeal are taxed to the appellant, Amber W.
______________________________________
JOHN W. McCLARTY, JUDGE
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