In Re Bernard T. Et Al.
| Decision Date | 26 August 2010 |
| Docket Number | No. W2008-02803-SC-R11-PT.,W2008-02803-SC-R11-PT. |
| Citation | 319 S.W.3d 586 |
| Parties | In re BERNARD T. et al. |
| Court | Tennessee Supreme Court |
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Robert E. Cooper, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Lindsey O. Appiah, Assistant Attorney General, for the appellant, Tennessee Department of Children's Services.
Ada Johnson, Memphis, Tennessee, for the appellee, Junior D.
This appeal involves a termination of rights proceeding under Tenn.Code Ann. § 36-1-113 (Supp.2009) with regard to five children between the ages of twelve and seventeen. The Tennessee Department of Children's Services removed the children from the custody of their biological mother and the person thought to be their biological father and entered into a series of permanency plans with them for the next three and one-half years. Shortly after discovering that the putative father was not the biological father of two of the children, the Department filed a termination petition in the Shelby County Juvenile Court. The juvenile court entered an order on October 31, 2008, terminating both the biological mother's and the putative father's parental rights. The putative father appealed the juvenile court's decision to terminate his parental rights based on both Tenn.Code Ann. § 36-1-113(g)(2)-(3) and Tenn.Code Ann. § 36-1-113(g)(9)(A)(iv), (vi). While the Court of Appeals affirmed the juvenile court's finding that grounds for termination of the putative father's rights existed, the court reversed the judgment terminating the putative father's rights based on the majority's conclusion that the Department had failed to prove that it had made reasonable efforts to assist the putative father to address the causes for termination under Tenn.Code Ann. § 36-1-113(g)(2)-(3). The majority also reversed the termination of the father's rights under Tenn.Code Ann. § 36-1-113(g)(9)(A)(iv), (vi) because the Department had failed to aid the putative father in establishing paternity. State, Dep't of Children's Servs. v. Tina T. (In re B.T.), No. W2008-02803-COA-R3-PT, 2009 WL 3681884 (Tenn.Ct.App. Nov. 5, 2009). We granted the Department's Tenn. R.App. P. 11 application. We have determined that the Department used reasonable efforts to assist the putative father to establish his parentage and to regain custody of his biological and legal children and that the juvenile court properly terminated the putative father's rights with regard to all five children.
Junior D. first met Tina T. in middle school in Memphis. Tina T. was almost two and one-half years older than Junior D.1 After Tina T. graduated from high school in 1978, she moved away from Memphis with her father. During the ten years she was away from Memphis, Tina T. had a non-marital child. This child accompanied Tina T. when she moved back to Memphis but later returned to live with his father's family.
Shortly after she returned to Memphis, Tina T. rekindled her friendship with Junior D. This relationship eventually became intimate. Junior D. proposed marriage to Tina T. on many occasions. Tina T., however, declined to marry Junior D. because their relationship was chaotic and physically abusive. Junior D. was arrested on domestic violence charges on more than one occasion.
Tina T. gave birth to Bernard T.2 on March 2, 1993. Although Junior D. was not identified as the father on the child's birth certificate, Junior D. believed and understood that he was Bernard T.'s father. Tina T. gave birth to Judy T. on August 4, 1995 and Joshua T. on April 29, 1997. The birth certificates of these children did not identify their father; however, Junior D. believed and understood that he was also the biological father of these children. On November 9, 1998, Junior D. and Tina T. executed a consent order in the Shelby County Juvenile Court finding that Junior D. was the “natural father” of Bernard T., Judy T., and Joshua T. 3 This order gave Tina T. custody of the three children and obligated Junior D. to pay $250 per month in child support. It also provided that the surnames of the three children should be changed to Junior D.'s surname.4
Tina T. gave birth to Jacquline T. on December 23, 1998. This child's birth certificate, like those of her three older siblings, did not list her biological father's name. However, Junior D. assumed and believed that he was Jacquline T.'s biological father. On March 1, 2003, Tina T. gave birth to Jordan T. Junior D. assumed and believed that he was Jordan T.'s biological father even though he was not listed as the father on the child's birth certificate.
The record is sparse regarding Tina T.'s and Junior D.'s relationship between her return to Memphis and 2003. Tina T. had psychiatric problems and in the mid-1990s, she became addicted to crack cocaine. Junior D. and Tina T. did not cohabit on a consistent basis. Tina T. moved often and was unable to remain steadily employed because of her substance abuse problem. She subsisted on Social Security benefits and welfare, although she frequently traded the food stamps she received for illegal drugs.
Junior D. worked at a series of construction and maintenance jobs following his graduation from high school. His longest period of employment was with the Tennessee Valley Authority (“TVA”) from 1993 until 2005. He was not able to hold a steady job after TVA laid him off in 2005. While Tina T. had physical custody of the five children, Junior D. tried to stay actively involved in the children's lives. The record contains little evidence regarding how or if Junior D. provided financial support for the children. Tina T. testified that he did not support the children and wasted money in strip clubs. Junior D. testified that he provided the children with money and school uniforms after they were placed in the custody of the Department; however, he never testified that he paid child support.
Junior D.'s relationship with Tina T. ended in 2003 while she was still pregnant with Jordan T. However, he continued to interact with Tina T. when he was visiting with the children. On November 4, 2004, Junior D. observed a drug dealer pull a pistol on Tina T. in front of the children. On November 8, 2004, Junior D. filed a pro se petition in the Shelby County Juvenile Court alleging that the five children were dependent and neglected and requesting physical custody.5 On November 10, 2004 the juvenile court temporarily placed the children in Junior D.'s custody.
On November 18, 2004, the Tennessee Department of Children's Services filed an intervening petition in the juvenile court.6 The Department asserted that Junior D. had lied to the juvenile court about his employment status and living arrangements. In light of these allegations and the conditions in Tina T.'s home, the juvenile court immediately placed the children in the protective custody of the Department. On December 1, 2004, the juvenile court gave the Department temporary custody of the children.
On December 17, 2004, Junior D. convinced the Department to return the children to him. Even though he was homeless at the time, he told the Department that his mother would allow him and the children to live with her despite the fact that his mother had made it clear that she wanted nothing to do with any of the children.
Over the next several months, Junior D. struggled to maintain a stable home for the children. They moved repeatedly and once lived in a hotel room after they were forced to leave their apartment because Junior D. had a fight with another tenant. The children's meals often consisted of fast food. The children attended a number of different schools, when they attended school at all. Judy T. explained that she and her siblings often missed school because “[D]ad was a sleepy head.” Without the Department's knowledge, Junior D. allowed Tina T. to have unsupervised physical custody of the children because he was required to work and his mother refused to watch the children.
Bernard T., the oldest of the five children, developed a serious sinus infection because of the squalid conditions in Tina T.'s home. Junior D. left the sinus infection untreated, and it worsened to the point that Bernard T. required surgery in February 2005. The juvenile court awarded the Department temporary custody of Bernard T. because Junior D. was unable to manage the boy's post-operative care. The Department placed Bernard T. in a home for medically fragile children in Knoxville. Bernard T. was never returned to Junior D. because of his health condition and reports of his inappropriate conduct with one of his siblings and two other children.
In April 2005, the Department briefly removed the four remaining children from Junior D.'s custody after Tina T. accused him of sexually abusing them. The Department returned the children to Junior D. after determining that the allegations were unfounded. On May 6, 2005, the juvenile court determined that the children were dependent and neglected and returned them to the Department's custody after finding that they had attended three different schools since February 2005, that they had witnessed Tina T. smoking crack cocaine, and that Junior D. had failed to provide them with stable housing. The court also determined that the Department had been attempting to provide services to Junior D. but that Junior D.'s frequent moves were hindering the provision of these services.
Between May 23, 2005 and May 18, 2008, the Department worked with Junior D. to address the conditions that led to the removal of the children from his custody. The Department entered into eight permanency plans involving Junior D. and the children. While Junior D.'s obligations under these plans changed from time to time, they included...
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