In re Navada N.

• Decision Date: 23 May 2016
• Docket Number: No. M2015–01400–COA–R3–PT,M2015–01400–COA–R3–PT
• Citation: 498 S.W.3d 579
• Parties: In re Navada N., et al.
• Court: Tennessee Court of Appeals

498 S.W.3d 579

In re Navada N., et al.

No. M2015–01400–COA–R3–PT

Court of Appeals of Tennessee, AT NASHVILLE.

March 1, 2016 Session

Filed May 23, 2016

Brandon M. Booten, Murfreesboro, Tennessee, for the appellant, Tommy N.

Wesley Clark, Smyrna, Tennessee, for the appellant, Jennifer C.

Herbert H. Slatery, III, Attorney General and Reporter; Charlotte Davis, Assistant Attorney General, for the appellee, State of Tennessee, Department of Children's Services.

J. Steven Stafford, P.J., W.S., delivered the opinion of the Court, in which Arnold B. Goldin, and Kenny Armstrong, JJ., joined.

OPINION

J. Steven Stafford, P.J., W.S.

Both Mother and Father appeal the trial court's decision to terminate their parental rights to two children. The trial court found clear and convincing evidence supporting several grounds against each parent and also found that termination was in the children's best interest. With respect to the grounds for termination, we reverse in part, vacate in part, and affirm in part. Additionally, we affirm the trial court's determination that termination is in the children's best interest, and therefore, affirm the termination of both Mother's and Father's parental rights to the children at issue.

BACKGROUND

The minor children at issue are Ryan C., born in 2000, and Navada N. (together with Ryan, “the children”) born in 2007.¹ Ryan is the biological child of Jennifer C. (“Mother”) and an unknown father.² Navada is the biological child of Mother and Tommy N. (“Father”). At some point in early 2013, the children had been residing with maternal grandmother when allegations arose that Ryan had been sexually abusing Navada for several months. On August 15, 2013, the Tennessee Department of Children's Services (“DCS”)³ conducted a Child and Family Team Meeting to discuss Ryan possibly being placed in state custody because he could no longer reside with Navada due to the allegations. Mother could not identify any placement option for him. At some point, more allegations arose that Ryan had watched pornography with Father and that both parents admitted to having sex while the children were in the same room asleep. As such, Ryan entered state custody on August 15, 2013. DCS permitted Navada to remain with Mother under an Immediate Protection Agreement (“IPA”) providing that Father, after release from his current incarceration, be prohibited from coming into contact with Navada. Subsequently, Mother tested positive for cocaine⁴ and admitted to allowing Father to drive Navada to school one day because she had missed the bus. Navada therefore entered state custody on October 10, 2013. In the subsequent dependency and neglect hearings, both parents consented to a finding that the children were dependent and neglected. Custody of both children was awarded to DCS. Throughout the proceedings in the trial court, both children resided in several foster homes. While Navada was in custody and after a Child and Family Team Meeting, Mother admitted she had been using cocaine and that she wanted to commit suicide. Mother was hospitalized in the Crisis Stabilization Unit on July 7, 2014. At the time of trial in this case, both children were still in state custody and resided in pre-adoptive foster homes.

After the children entered state custody, a series of permanency plans were created. Over the years that the children were in DCS custody, five parenting plans were entered involving the children. All of the parenting plans were ratified by the trial court and required Mother to complete certain action steps. Four of the parenting plans also contained action steps for Father to complete. Eventually, the goals of the plans transitioned from “return to parent” to “exit custody with relative” to “adoption.”

On September 11, 2014, the DCS filed a petition in the Juvenile Court of Rutherford County to terminate the parental rights of Mother and Father to Navada and Mother's parental rights to Ryan. DCS alleged the following grounds against both Mother and Father: abandonment by an incarcerated parent for failure to support, abandonment by an incarcerated parent by wanton disregard, abandonment by failure to establish a suitable home, substantial noncompliance with a permanency plan, and persistence of conditions. DCS alleged the following ground against Mother only: abandonment by failure to support. Finally, DCS alleged the following grounds against Father only: abandonment by an incarcerated parent by failure to visit and failure to establish paternity. The petition also asserted that termination was in the children's best interest.

The trial court conducted a hearing on DCS's petition on April 7, May 12, and May 15, 2015. Mother testified first and stated that she is currently incarcerated and has been since February 27, 2015. She stated that she will be released on May 27, 2015. She testified that she had not seen either child since September 2014, approximately six months prior to trial. Her incarceration stems from a sealed indictment for illegally selling Lortab

pills in November 2012 for which she was arrested in May 2014. She indicated that she was prescribed Lortab for “back pain,” and that she used her social security disability income to pay for the pills. She admitted that, one day before serving her current jail sentence beginning on February 27, 2015, she used crack cocaine.

Much of Mother's testimony revolved around her addiction to cocaine. She testified that she had been to several rehabilitation treatment centers, but that she had developed a pattern over the last several years of getting clean and then relapsing approximately every ninety days. In January 2014, Mother completed an in-patient rehabilitation program at Bradford in Alabama. After her completion, she entered an intensive out-patient treatment program, but relapsed in February 2014 and was discharged from the program. Also during February 2014, Mother incurred a vandalism charge. She testified that she enrolled in two more rehabilitation programs throughout April and May 2014 and completed one of the programs. Still, Mother admitted to using cocaine as late as February 26, 2015. She was hospitalized in July 2014 for suicidal ideations

and enrolled in yet another treatment program that same month.

Regarding financial support, Mother admitted that she had not paid any support to the children while they were in DCS custody; Mother excused her failure based on the fact that she was never ordered to pay. At one point during her testimony, however, she testified that she “gave them money every other time I had visitation with [Navada].” Mother's testimony appears to mean that she would give $10 or $20 on occasion directly to the children, but she never gave money to DCS or foster parents. Mother stated that she receives $733.00 per month in disability income, but that her benefits were currently on hold due to her incarceration. Mother stated that when the children were residing with her, her monthly rent totaled $136.00. She testified that her rent was currently $68.00 per month and that she had paid in advance so she would be able to return to the apartment after her incarceration. When questioned about whether she could have used the money saved on rent to pay support, Mother indicated that she had the ability to do so but did not because “I wasn't ordered to.” Still, Mother testified that she “sometimes” paid $10 or $20 for cocaine.

Regarding the permanency plans, Mother testified that she had completed a psychological evaluation to address inappropriate sexual behaviors around the children and followed its recommendations; showed proof of her disability income; maintained adequate residency and showed proof to DCS; provided a written budget and transportation plan⁵ to DCS; provided the information she had concerning the identity of Ryan's father; continued individual counseling and medication management; followed all recommendations of the therapist and took medications as prescribed; continued to visit her primary care physician for her seizures and developed a safety plan; completed a clinical assessment with a parenting component; completed an alcohol and drug assessment; attempted to acknowledge her role in the children's removal; visited Ryan as often as possible while he was in treatment; followed recommendations of the Crisis Stabilization Unit upon release; took medication as prescribed; did not “make promises to either child about what the future holds”; did not discuss the case with either child; signed updated releases so that the new Family Service Worker could request counseling and medical records; and promised to be available to drug screen in another county should the issue arise. Mother conceded that she was unable to fulfill several conditions of the permanency plan, however, such as refraining from the use of illegal drugs and passing drug tests. At one point, she also failed to prohibit Father's contact with Navada, despite his noncompliance with the plans.

Mother was scheduled to be released approximately twelve days after the final day of trial in this matter, which occurred May 15, 2015. She testified that because of her incarceration, she was not in a position to take custody of the children today.

Father testified that he has been incarcerated since January 19, 2014 for a probation violation. Before that, he was incarcerated from April 2013 until September 2013. He expected to be released from his current incarceration in October 2015. He stated that the underlying charge is fleeing by a motor vehicle incurred in 2007, for which he was sentenced to nine years. He said that he also incurred a charge for the sale of cocaine in 2009 and was sentenced to 6 years, but was released after a year and placed on probation. He testified that he received the charges in Davidson County and moving back to Rutherford County was a violation of either his parole or probation. He also testified that, before he went back to jail in January 2014, he...