In re Crystal W., 012121 TNCIV, E2020-00617-COA-R3-JV

Docket Nº:E2020-00617-COA-R3-JV
Opinion Judge:THOMAS R. FRIERSON, II, JUDGE
Party Name:In re CRYSTAL W. et al.
Attorney:Mary Ward, Knoxville, Tennessee, for the appellant, Wanda P. Herbert H. Slatery, III, Attorney General and Reporter, and Jordan K. Crews, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services.
Judge Panel:Thomas R. Frierson, II, J., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S., and Kenny W. Armstrong, J., joined.
Case Date:January 21, 2021
Court:Court of Appeals of Tennessee

In re CRYSTAL W. et al.

No. E2020-00617-COA-R3-JV

Court of Appeals of Tennessee, Knoxville

January 21, 2021

Assigned on Briefs November 2, 2020

Appeal from the Fourth Circuit Court for Knox County No. 140542 Gregory S. McMillan, Judge

In this dependency and neglect action, the mother appealed the determination made by the Knox County Juvenile Court ("juvenile court") that the two minor children at issue were dependent and neglected to the Knox County Circuit Court ("trial court"). The father of the children had initiated the action by filing a petition for dependency and neglect against the mother in the juvenile court, alleging, inter alia, the mother's inability to properly care for the children due to ongoing mental health issues. The Tennessee Department of Children's Services ("DCS") had intervened in the juvenile court proceedings, and following entry of an adjudicatory order, the juvenile court had awarded legal and physical custody of the children to the father. In a separate proceeding not at issue in this appeal, the juvenile court subsequently awarded temporary custody of the children to the paternal grandfather and step-grandmother. Following a de novo bench trial on the mother's appeal, the trial court determined that the children were dependent and neglected as to the mother and maintained custody of the children with the paternal grandfather and step-grandmother. The mother has appealed to this Court.1 Discerning no reversible error, we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; Case Remanded

Mary Ward, Knoxville, Tennessee, for the appellant, Wanda P.

Herbert H. Slatery, III, Attorney General and Reporter, and Jordan K. Crews, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services.

Thomas R. Frierson, II, J., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S., and Kenny W. Armstrong, J., joined.

OPINION

THOMAS R. FRIERSON, II, JUDGE

I. Factual and Procedural Background

This case focuses on two minor children, Crystal W. and Jennifer W. ("the Children"), born to Wanda P. ("Mother") and Thomas W. ("Father"), who were never married to each other. On March 21, 2016, Father filed a petition in the juvenile court, requesting that the court find the Children, who were respectively seven and five years of age at the time, dependent and neglected as to Mother and grant Father "legal care and custody." The parents had undisputedly separated and ended their relationship earlier in 2016. In his petition, Father averred that Mother had "ongoing mental health issues," exhibited "erratic behavior," and did not consistently take needed medication. He also averred that Mother did not have a stable home and that he was concerned for the Children's safety. Father attached to his petition copies of an admission assessment and discharge summary reflecting that Mother had been hospitalized at Peninsula Hospital ("Peninsula") from March 9, 2016, through March 18, 2016, for mental health reasons.

The juvenile court subsequently appointed attorney Anna E. Corcoran as guardian ad litem ("GAL") to represent the Children.2 On April 13, 2016, the GAL filed an emergency ex parte motion, alleging that the Children were dependent and neglected as to Mother and requesting that they be placed in "the temporary legal and physical custody" of Father. Incorporating the allegations in Father's petition by reference, the GAL argued that it was in the best interest of the Children to be removed from Mother's custody based on, inter alia, Mother's "unresolved mental health issues" and "recent arrests." Reporting that she had "observed a safe and appropriate home, and that the Children were happy and appeared well cared for by Father," the GAL asserted that it was in the best interest of the Children to be placed with Father. The GAL also requested in her ex parte motion that Mother be ordered to have no contact with the Children pending a hearing.

The juvenile court immediately entered an "Ex-Parte Temporary Restraining Order," awarding temporary physical custody of the Children to Father and prohibiting Mother from removing the Children from Father's custody. The juvenile court also directed that prior to the preliminary hearing on Father's petition, Mother could have visitation with the Children, provided that the visits were supervised by Father or a third party designated by Father.

On April 18, 2016, DCS, through case manager Gary Honaker, filed a motion to intervene and also requested that the juvenile court find the Children to be dependent and neglected as to Mother and award temporary legal custody of the Children to Father. Specifically alleging that the Children were dependent and neglected because of Mother's "mental health issues, homelessness, and overall instability," DCS requested that Mother be granted only "supervised contact" with the Children and that Father be directed to ensure that Mother's visits were supervised.

In its motion to intervene, DCS averred that it had received a referral alleging environmental neglect in Mother's home on March 7, 2016, and that Mother had been admitted to Peninsula a few days later. Noting in its motion that Mother had been released from Peninsula on March 20, 2016, DCS further averred that after attempting to visit Mother at a "new address" that she had provided, Mr. Honaker was subsequently informed by Mother that she had vacated that residence when she and the residence's owner had argued and law enforcement had been called. Mother had then undisputedly sought shelter at Knox Area Rescue Ministries ("KARM"). According to DCS, Mother subsequently missed a meeting with Mr. Honaker when she was arrested on March 28, 2016, and charged with assault following an incident when Mother sat in a stranger's vehicle in a parking lot and bit the vehicle's owner on the thigh when the owner tried to physically remove her. As evinced by a judgment presented as an exhibit in the trial court, Mother pled guilty in the Knox County General Sessions Court ("general sessions court") to the assault charge stemming from the March 28, 2016 incident, and the general sessions court sentenced her to eleven months, twenty-nine days, suspended.

Following a hearing conducted on April 21, 2016, at which Mother did not appear, the juvenile court entered an interim order the same day, finding probable cause that the Children were dependent and neglected as to Mother and awarding physical custody of the Children to Father. The juvenile court appointed Mother's former counsel to represent her in the juvenile court proceedings. In a subsequent order entered on June 20, 2016, the juvenile court made further findings of fact, including that the Children were dependent and neglected as to Mother "due to the mental health issues, lack of stable housing, and substance abuse issues of [Mother], along with [Mother's] inability to provide appropriate care and supervision." The juvenile court noted that this finding was made without prejudice to Mother because it was "unclear whether [Mother] had notice of this proceeding." Again awarding "temporary legal and physical custody" of the Children to Father, the juvenile court granted Mother supervised visitation to be conducted by Parent Place, a third-party agency. The juvenile court also directed Mother to, inter alia, undergo a mental health assessment and an alcohol and drug assessment and follow all resultant recommendations, execute releases for DCS and the GAL, "secure safe and appropriate housing" and a "legal source of income," maintain consistent visitation with the Children, and refrain from harassing or engaging in "verbal or physical conflict" with Father. Following a subsequent hearing conducted on August 30, 2016, the juvenile court entered additional interim orders confirming the probable cause determination and the Children's placement in Father's physical custody.

The juvenile court conducted an adjudicatory hearing on January 31, 2017, and entered an order the same day, finding by clear and convincing evidence that the Children were "in the protective jurisdiction" of the juvenile court pursuant to the statutory definition of a dependent and neglected child, see Tenn. Code Ann. § 37-1-102(b)(13), and awarding "physical and legal custody" of the Children to Father. In an adjudicatory order entered on June 7, 2017, the juvenile court specifically stated that the finding of dependency and neglect was based upon Mother's "unresolved mental health issues, lack of stable housing, and inability to provide appropriate care and supervision." Upon a notice of appeal filed by Mother, the juvenile court judge confirmed the magistrate's findings in an order entered on June 27, 2017, and directed the court clerk to prepare and forward the record to the trial court for a "trial de novo."

Following notice to the parties and with no pleadings having been filed in the trial court related to the appeal from the juvenile court's judgment, the trial court entered an order dismissing the appeal on January 3, 2018. Mother, acting without benefit of counsel, then filed a timely notice of appeal with this Court, seeking review of the dismissal order. Upon this Court's subsequent order of remand, notice filed by DCS that it had contacted Mother and discovered that she was involved in pending matters in the juvenile court and was represented there by her current counsel, and Mother's filing of an affidavit of indigency, the trial court entered an order appointing Mother's current counsel to represent her in the trial court. Upon a subsequent joint motion filed by DCS, Mother, and the GAL, the trial court entered an agreed order on October 29, 2019, ...

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