In re Los
| Decision Date | 29 June 2018 |
| Docket Number | No. M2017-02362-COA-R3-PT,M2017-02362-COA-R3-PT |
| Parties | IN RE CHASE L. |
| Court | Tennessee Court of Appeals |
Appeal from the Juvenile Court for Davidson County
No. 2015-1282, 203347, 218898
In this termination of parental rights case, the trial court terminated Mother's rights on the grounds of (1) abandonment by willful failure to visit; (2) abandonment by wanton disregard; (3) substantial noncompliance with the permanency plans; (4) abandonment by failure to provide a suitable home; and (5) persistent conditions. In its brief, DCS conceded that it cannot defend the grounds of failure to establish a suitable home and persistent conditions. As such, we reverse as to the grounds of abandonment by failure to provide a suitable home and persistent conditions. The trial court's judgment is affirmed in all other respects.
J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the court, in which FRANK G. CLEMENT, JR., P.J., M.S., and JOHN W. MCCLARTY, J., joined.
David R. Grimmett, Nashville, Tennessee, for the appellant, T.L.
Herbert H. Slatery, III, Attorney General and Reporter; Kathryn A. Baker, Assistant Attorney General, for the appellee, State of Tennessee, Department of Children's Services.
OPINIONChase L. ("the child") was born in early December 2014 to T. L. ("Mother").1 No father was listed on the child's birth certificate; however, Mother and C. M. ("Father")acknowledge that he is the child's biological father.2 Mother and Father have had a ten-year on-and-off relationship. Mother has a history of drug abuse and domestic violence throughout her relationship with Father, and in 2010 Mother was diagnosed with Posttraumatic Stress Disorder as a result of this domestic violence. Despite this fact, Mother continued her relationship with Father, who is the biological parent of three of Mother's seven children.
In late December 2014, the Department of Children's Services ("DCS" or "the Department") received a referral regarding Mother and the child involving allegations of lack of supervision, drug-exposed child, and physical abuse.3 DCS began an investigation as a result of the referral. In January 2015, DCS conducted an unannounced home visit to Mother and Father's residence at which time DCS requested that Mother take a drug screen. Mother refused to do so at the time, although she denied using any drugs. Mother then agreed that she would attend the next session of family treatment court. Mother attended at least one family treatment court session subsequent to the DCS home visit, but eventually stopped attending the sessions claiming it was too difficult to travel to the court house where the sessions were held.
On April 6, 2015, DCS received another referral alleging domestic violence between Mother and Father that occurred on or about March 28, 2015. Mother later admitted that she maintained a relationship with Father until this incident. When the incident occurred, the child was present in the home. Mother admitted that Father hit her and that she retaliated by stabbing Father with a butcher's knife in the arm. As a result of the incident, Father was arrested at the end of March, and Mother was arrested on April 13, 2015. Mother ultimately pleaded guilty to aggravated assault on May 14, 2015, and was sentenced to three years' incarceration; however, the incarceration was suspended and Mother was placed on supervised probation.
After Mother and Father were arrested, the child was placed with Mother's cousin in a non-custodial safety placement. Mother agreed to this placement. On June 1, 2015, Mother's cousin could no longer care for the child and he began to live with Lisa R. ("Foster Mother") and Greg R. ("Foster Father," and together with Foster Mother, "Foster Family"), church friends of Mother's cousin. The child was placed in DCS's custody shortly after, in August 2015, because Foster Family could no longer financially support the child. On August 14, 2015, the Davidson County Juvenile Court ("trial court") entered an order adjudicating the child as dependent and neglected due to domestic violence concerns. The child continued to reside with Foster Family followingthe adjudication. The trial court granted Mother a minimum of four (4) hours of supervised visitation per month.
At this time, DCS provided Mother with in-home visitation and family violence intervention services. Foster Family also provided Mother with visitation during this time. These services were provided to Mother until November 2015, at which time DCS was relieved of reasonable efforts by the trial court. Mother, however, claims she was not concerned because she was receiving visits at the Foster Family's discretion. These visitations, however, ceased in December 2015, when Foster Family began refusing her requests for visits because they were instructed to direct Mother to DCS to set up visitation. There is no dispute that Mother often called Foster Family to check in with the child and ask for visitation.
A permanency plan was created on August 27, 2015. The plan was ratified by the trial court on September 29, 2015. At the ratification hearing, the trial court found that the permanency plan's requirements were reasonably related to the plan's goal and that DCS was relieved from providing Mother with reasonable efforts pursuant to Tennessee Code Annotated section 37-1-166(g) due to the termination of Mother's parental rights to three of the child's siblings. Although Mother did not attend this ratification hearing, Mother's attorney was present. Pursuant to the plan, Mother was to: (1) continue with mental health services and follow all recommendations; (2) remain compliant with all medications; (3) complete an Alcohol and Drug assessment and participate in random drug screens; (4) complete a functional parent assessment with a mental health component and follow all recommendations; (5) maintain consistency on scheduled visits; (6) remain compliant with therapeutic visitation; (7) cooperate with DCS and service providers; (8) obtain and maintain a legal source of income and housing; (9) attend and complete all future criminal proceedings; (10) complete all orders and restrictions entered by criminal court; and (11) avoid further criminal activity.
The permanency plan was amended in July 2016, with the ratification hearing taking place over two days in late July and early August. The DCS Family Services Worker later testified that she mailed the permanency plan and the adjudicatory order to Mother's address and explained Mother's responsibilities in the plan to her over the phone. In addition to the requirements under the initial plan, Mother was required to refrain from engaging in domestic violence for a period of one year.
On May 3, 2016, DCS filed a petition to terminate Mother's rights on three grounds: (1) abandonment by failure to visit or support; (2) abandonment by failure to establish a suitable home; and (3) substantial non-compliance with the permanency plans.
In August 2016, Father came to Mother's home to ask for money, despite the fact that Mother stated that their relationship was over after the March 2015 incident. After Father left Mother's home, Mother's neighbor, who was seeing Father at the time, cameover. A fight between the women ensued. Mother claimed that the neighbor was the initial aggressor; however, Mother ended up stabbing the neighbor with a screwdriver. Mother was arrested after the incident, her probation was fully revoked, and she was convicted of simple assault. Mother was incarcerated on August 24, 2016, and remained incarcerated at the time of the trial.
The matter was originally set for trial on December 16, 2016; however, due to Mother's incarceration, the trial had to be rescheduled multiple times. As discussed in more detail, infra, following a February 23, 2017 hearing in which trial was continued so that new counsel could be appointed for Mother, DCS filed what it termed an amended petition to terminate Mother's parental rights alleging, in conjunction with the three grounds previously stated, two additional grounds: (1) abandonment by an incarcerated parent for willful and wanton disregard for the welfare of the child and (2) persistent conditions that prevent return of the child. DCS did not request nor receive court permission to file its amended petition. The matter was finally heard on May 18, 2017.
At trial, Mother admitted that she was required to take several actions in the permanency plans, including visiting the child, completing parenting classes, and completing an alcohol and drug assessment. Mother testified that she participated in the in-home visitation with her child and domestic violence counseling provided by DCS until November 2015, when the in-home services stopped. Mother also stated that she had a psychological evaluation and attended some therapy sessions.4 Mother additionally stated that, despite being hospitalized for a suicidal ideation, she did not need medicine and was not taking any medicine. Mother further testified that she completed anger management and a drug abuse program; these efforts, however, took place following the filing of the initial termination petition, while Mother was incarcerated. Lastly, Mother asserted that she called the Foster Family as often as she could to talk to the child and request visitation; however, Mother claimed that the Foster Family would not allow her to visit the child without contacting DCS first.
Mother's family service worker, Jennifer Williams, testified, however, that despite mailing both permanency plans to Mother, she generally failed to complete the requirements of both plans. For example, although Mother completed a functional parenting assessment, Mother failed to complete the recommendations of the assessment by declining to take all prescribed...
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