In re Gracie Y.

• Decision Date: 16 March 2020
• Docket Number: No. M2019-00639-COA-R3-PT,M2019-00639-COA-R3-PT
• Parties: IN RE GRACIE H. Y. ET AL.
• Court: Tennessee Court of Appeals

IN RE GRACIE H. Y. ET AL.

No. M2019-00639-COA-R3-PT

COURT OF APPEALS OF TENNESSEE AT NASHVILLE

Assigned on Briefs January 2, 2020

March 16, 2020

Appeal from the Chancery Court for Lawrence County

No. 18-18495

Stella L. Hargrove, Judge

Ashley H. ("Mother") appeals the March 2019 order of the Lawrence County Chancery Court ("Trial Court") terminating her parental rights to the minor children, Noah H. and Gracie H. Y. (collectively, "the Children"). Bobby H. ("Father") surrendered his parental rights to the Children prior to trial and did not revoke his surrender. Upon petition of the Tennessee Department of Children's Services ("DCS"), the Trial Court terminated Mother's parental rights to the Children upon the statutory grounds of abandonment by failure to visit prior to her incarceration, abandonment by wanton disregard, abandonment by failure to provide a suitable home, substantial noncompliance with the permanency plans, persistent conditions, and failure to manifest an ability and willingness to assume custody or financial responsibility of the Children. The Trial Court further found that termination of Mother's parental rights was in the Children's best interest. Mother timely appealed. We reverse the statutory ground of abandonment by failure to provide a suitable home. We affirm the Trial Court's judgment in all other respects including the termination of Mother's parental rights.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part, Reversed in Part; Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which ANDY D. BENNETT and THOMAS R. FRIERSON, II, JJ., joined.

Stacie L. Odeneal, Lawrenceburg, Tennessee, for the appellant, Ashley H.

Herbert H. Slatery, III, Attorney General and Reporter, and Jeffrey D. Ridner, Assistant Attorney General, for the appellee, the Tennessee Department of Children's Services.

OPINION

Background

In July 2017, DCS filed a petition for temporary legal custody of the Children in the Lawrence County Juvenile Court ("Juvenile Court"). On the same day, the Juvenile Court entered a Bench Order placing the Children in the custody of DCS. DCS had received a referral alleging lack of supervision and drug-exposed child concerning the Children due to Mother's drug use. DCS subsequently received another referral concerning Noah, alleging physical abuse by Mother's boyfriend, Brian R. According to the DCS investigator, Lynn Short, Mother had informed her that Noah had been crying, and she went to the kitchen to fix him a bottle. When she came back, Mother saw Noah had a bloody lip, and Brian told her he had "popped the child in the mouth." Mother and Brian argued, and when she locked herself and the Children in the bathroom, Brian "kicked in the door." Mother then contacted law enforcement. DCS further alleged that in January 2017 when Noah was approximately nine months old, he had tested positive for methamphetamine and cocaine.

Mother received a copy of the Criteria & Procedures for Termination of Parental Rights in July 2017. A DCS case manager explained the contents of the documents to Mother on that day. In August 2017, Mother waived her adjudicatory hearing and stipulated that a factual basis existed to believe the Children were dependent and neglected due to Mother's incarceration.

In August 2017, DCS developed a permanency plan for the Children, which the Juvenile Court subsequently approved as being reasonably related to the reasons necessitating foster care and in the Children's best interest. The August 2017 permanency plan provided that Mother would complete the following requirements: provide safe, appropriate, and stable housing and provide proof thereof; notify DCS regarding a change in housing or telephone number; comply with the rules of her probation; have a stable, legal income; notify DCS within seven days of any individuals residing in her home; complete budgeting services; pay child support; complete homemaker services; sign releases with provider agencies; complete a mental health assessment and follow all recommendations; complete an alcohol and drug assessment and comply with all recommendations; complete domestic violence counseling; visit the Children regularly and comply with parenting guidance; and comply with and pass random drug screens. The plan reflects that Mother participated in the development of the plan by telephone.

A dispositional hearing was conducted in October 2017, and the Juvenile Court ordered that the Children would remain in DCS custody. DCS developed two more permanency plans in January 2018 and May 2018 with the same requirements as the firstplan, which the Juvenile Court approved. A fourth permanency plan was developed in December 2018 with the same requirements as the previous plans and an additional requirement that Mother resolve all pending legal issues and not incur new charges.

In June 2018, DCS filed a petition to terminate Mother's parental rights in the Trial Court.¹ The Trial Court conducted a trial on two consecutive days in February 2019.² Thereafter, the Trial Court entered an extensive order with the following findings of fact and conclusions of law:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

A Brief History of the Case: [Mother] is 23 years old and completed the eleventh grade. She is the mother of Noah [H.] (Noah), who is 34 months old, and Gracie [H.Y.] (Gracie), who is now 21 months old. Trial Exhibit 1 [the Children's birth certificates] reflects that [Father] is the father of each child. On February 20, 2019, [Mother] named another male other than [Father] as the father of Gracie. Undisputedly, this is the first time ever that [Mother] names a different father. A search of the putative registry reflects that no person other than [Father] claims paternity of either child. [Mother] is still married to [Father]. The Court questions the credibility of [Mother], as to her last minute assertion that [Father] is not the father of Gracie.

Testimony will reveal that from May, 2017, and July, 2017, DCS received three referrals concerning the children, including referrals of (1) drug exposed child, (2) physical abuse, and (3) lack of supervision. Gracie was born May **, 2017; Noah was born April **, 2016. Therefore, during these three months, Gracie was a newborn, and Noah was one year old.

Subsequent to a referral to DCS on July 24, 2017, a Petition for Temporary Custody was filed in the Lawrence County Juvenile Court on July 26, 2017. On July 26, 2017, a Bench Order was entered and both children were placed in the temporary legal custody of DCS. On August 24, 2017, [Mother] stipulated that the children were dependent and neglected. The record reflects that [Father] did not appear for this hearing, and he did not appear for any hearings beyond July 28, 2017. On August 24, 2017, an Order was entered continuing the legal custody of the childrenin DCS. On October 2, 2017, a Final Order of Disposition was entered, continuing custody of the children in DCS. Both children have remained in the custody of DCS as of the date of trial.

The Statutory Grounds for Termination of the Parental Rights of [Mother] are:

Ground 1: Abandonment by Incarcerated Parent — Failure to Visit, pursuant to Tenn. Code Ann. §36-1-113(g)(1) and §36-1-102(1)(A)(iv), (1)(C) and (1)(E).

Ground 2: Abandonment by Incarcerated Parent due to Wanton Disregard for the Children, pursuant to Tenn. Code Ann. §36-1-113(g)(1) and §36-1-102(1)(A)(iv).

Ground 3: Abandonment by Failure to Provide Suitable Home, pursuant to Tenn. Code Ann. §36-1-113(g)(1) and §36-1-102(1)(A)(ii).

Ground 4: Substantial Noncompliance with Permanency Plans, pursuant to Tenn. Code Ann. §36-1-113(g)(2) and §37-2-403(a)(2).

Ground 5: Persistence of Conditions, pursuant to Tenn. Code Ann. §36-1- 113(g)(3).

Ground 6: Failure to Manifest Ability and Willingness Personally to Assume Legal and Physical Custody or Financial Responsibility, pursuant to Tenn. Code Ann. §36-1-113(g)(14).

The Statutory Four-Month Period Applicable to [Mother]: The four-month statutory period, where applicable, prior to the filing of the Petition for termination is disputed. The two periods are set out herein. The Court finds that its ruling is the same, regardless of which statutory period is correct. The two periods are either:

(1) A consecutive period from September 29, 2017 to January 29, 2018, or

(2) An aggregated period of October 29, 2017, to January 29, 2018, plus the period of February 23, 2018, to March 27, 2018.

The Hearings: On February 11, 2019, prior to [Mother] executing a surrender of her parental rights, DCS called Erica Ivey, a Clinical Supervisor with Health Connect America, as the first witness.

On February 20, 2019, DCS called the following witnesses: Lynn Short, an Investigator for DCS; Tina Waits, an Investigator for DCS; and [Mother].

On February 21, 2019, DCS called [G.M.], foster mother of the children, Christian Krasowski, a Family Case Worker for DCS and Nikiya (Nikki) Esmond, a receptionist for Health Connect America. Counsel for [Mother] called Glenda York, the mother of [Mother], as well as [Mother].

The Demeanor of [Mother]: The Court feels compelled to discuss the attitude and demeanor of [Mother], because the Court has never witnessed such demeanor in a termination case. [Mother] was late arriving to court every day. She showed no interest in the testimony of witnesses, and was constantly on her cell phone. On February 21, 2019, the Court took her cell phone away until the trial ended. When [Mother] was not on her cell phone, she was constantly yawning, laughing, and trying to engage her lawyer in conversation while she was smiling. She never displayed any interest in what was going on. The Court asked [Mother] if she understood the seriousness of the trial. She indicated that she did.

On the afternoon of February 20, 2019, [Mother] asked the Court if she could "waive her trial." The Court encouraged her to stay with the trial and have her lawyer defend her and

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