In re Raylan W.
| Decision Date | 20 August 2020 |
| Docket Number | No. M2020-00102-COA-R3-PT,M2020-00102-COA-R3-PT |
| Parties | IN RE RAYLAN W. |
| Court | Tennessee Court of Appeals |
Appeal from the Juvenile Court for White County
No. JV-1424, JV-4629
After Mother failed to timely appeal the final order terminating her parental rights, she sought relief pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure. The trial court denied the motion, and Mother timely appealed from that order. Because we conclude that the trial court erred in denying Mother's Rule 60.02 motion, we proceed to consider the correctness of the trial court's final order terminating Mother's parental rights. But we conclude that the trial court did not err in finding clear and convincing evidence of grounds for termination and that termination is in the child's best interest. We therefore affirm the termination of Mother's parental rights.
RICHARD H. DINKINS, not participating.
Elizabeth Roderick, Chattanooga, Tennessee, for the appellant, Elaina L. W.
Herbert H. Slatery, III, Attorney General and Reporter; Jeffrey D. Ridner, Assistant Attorney General, Tennessee, for the appellee, Tennessee Department of Children's Services.
OPINIONThis case involves a petition to terminate the parental rights of Respondent/Appellant Elaina L.W. ("Mother") by Petitioner/Appellee the Tennessee Department of Children's Services ("DCS"). Mother's involvement with DCS began in 2013 when her son, born in 2010, was removed from her custody. Mother thereafter successfully completed a drug rehabilitation program at the Nashville Rescue Mission. Due to Mother's progress, the child was returned to Mother on a trial basis. Eventually, on December 5, 2016, the child was returned to Mother's legal and physical custody.
Approximately six months after DCS terminated its involvement with Mother, on June 16, 2017, Mother was arrested for driving under the influence ("DUI") and reckless endangerment;1 the child was in the vehicle and six years old at the time. DCS removed the child and returned him to his previous foster family ("Foster Parents"). Mother was later found guilty of these charges and sentenced to an eleven-month, twenty-nine-day jail sentence. All but forty-seven days of the sentence, however, was suspended.
DCS filed a dependency and neglect petition regarding the child in July 2017. The juvenile court declared the child dependent and neglected, as well as the victim of severe abuse by order of August 8, 2017. No appeal was taken from that order.
DCS created several permanency plans for Mother throughout the case; Mother often participated in their creation. Generally, the plans contained steps intending to ameliorate Mother's legal, drug, mental health, and stability issues. In particular, the first permanency plan directed Mother not to dye her hair so as to facilitate hair follicle drug testing.
Mother made progress on many of the tasks required of her for some time. Mother, however, was discharged from mental health counseling due to nonattendance in May 2018. Mother was employed off-and-on during this time and sometimes paid child support; her last support payment occurred in July 2018.
Mother's drug use was also still in question. Although Mother initially passed all scheduled drug tests, she was never able to provide a sample on a single unannounced drug screen. Mother also bleached her hair in violation of the permanency plan requirements, leading to a court order restricting her ability to do so.
Mother also attended the majority of her visitations with the child, though she sometimes missed due to forgetting or other issues. For example, the DCS caseworker testified that from June 2017 to August 2018, Mother missed only eight visits of the approximately forty-five offered; from August 2018 to March 2019, however, Mother missed seventeen visits out of twenty-four that were offered.2 Mother refused visitation after her relapse in the Winter of 2018-2019, stating that she was not in a place that she "deserved" visitation. During the visits that did occur, the child referred to Mother as "Momma Elaina" and appeared close and loving with Mother. Sometimes following thevisits, however, the child would exhibit poor behavior; those behaviors have improved over time. The child refers to his current foster parents as "mom and dad." Mother also maintained phone calls and letters with the child.
The lingering questions as to Mother's sobriety were answered in October 2018, when a hair follicle drug screening indicated that Mother had used amphetamines and methamphetamines. When the DCS caseworker discussed the positive result with Mother, Mother admitted the drug use, but denied that she was using daily. Later, Mother told DCS that she was glad that DCS was aware of the drug use so that she could have a fresh start. Mother admitted that she continued using drugs until December 2018.
Mother's legal issues also continued. In December 2018, Mother was arrested in Cumberland County for possession of methamphetamine. This charge caused her probation on earlier charges in White County to be revoked. Mother's sentence for the Cumberland County charges was to run concurrent to the resulting sentence for violation of probation in White County.
As a result of Mother's relapse and criminal charges, on December 28, 2018, DCS filed a petition to terminate Mother's parental rights on five grounds.3 Only two grounds, however, were pursued at trial or are at issue in this appeal: (1) severe abuse; and (2) persistence of conditions.
In January 2019, Mother began intensive outpatient therapy but was soon discharged for nonattendance.4 Around January 15, 2019, Mother was evicted from her apartment. She was then essentially homeless for a period until she was remanded to the White County Jail for the probation violation. In March 2019, however, Mother was granted a furlough from jail to attend intensive inpatient substance abuse rehabilitation again at the Nashville Rescue Mission. Mother was still in this treatment program by the July 2019 trial on the termination petition.
There was no dispute at trial that Mother had passed all drug screens administered to her in rehabilitation and that she was progressing through the program. As long as Mother continued to progress, she could graduate from the program as early as August 2019. At that time, however, Mother would be required to return to White County to complete her jail sentence. Mother then hoped that she would be allowed to return to the Nashville Rescue Mission for post-rehabilitation support. Although the witnesses testified that they were unaware of anyone being allowed to return after a jail sentence in this manner, a Nashville Rescue Mission employee testified that it was "possibly . . . apossibility."
If Mother was allowed to return to the Nashville Rescue Mission, she would be required to first live in workers' dorms. There was some dispute as to whether the child could have overnight visits with Mother while she lived in these dorms, but there was no dispute that the child could not reside with Mother during this time. Once Mother obtained a job, she could then move to transitional housing, where it was believed that Mother would be able to have her son with her.5 Mother conceded that her acceptance back to the Nashville Rescue Mission was not settled, but testified that she had applied to other housing in the Nashville-area in the event that she was not accepted at the Nashville Rescue Mission.
Mother was questioned extensively as to what made her efforts at rehabilitation different than in 2016 when she had previously completed the same program only to relapse months later. Mother noted first that she intended to stay in the Nashville-area, rather than return home to White County, as she had more support and less temptation. In addition, Mother and other witnesses described changes that had been made to the Nashville Rescue Mission program, which now included more focus on therapeutic treatment. Mother testified that this treatment had helped her cope with her childhood trauma that led to her addiction issues.
The child was placed with the same family following the second removal as he had previously resided upon the first removal. Although the family loved the child, it was not a pre-adoptive home. Recently, however, the foster mother's brother and his family had offered to adopt the child. The child had several visits with this family, some of which were observed by DCS. A DCS caseworker testified that a bond had already formed between the child and the prospective adoptive placement. The caseworker admitted, however, that the child could not currently visit with the prospective adoptive family due to bed bugs; the caseworker testified that the belief was that the prospective adoptive family moved into a new home that was "contaminated" with bed bugs and the child brought the bugs to his current foster family. According to the caseworker, the families "have paid extensive amounts of money" to exterminate the bugs.
The trial court orally ruled that Mother's parental rights would be terminated at the conclusion of the hearing. The trial court thereafter entered a detailed written order on October 7, 2019. Therein, the trial court ruled that DCS had shown clear and convincing evidence of both grounds for termination, as well as that termination was in the child's best interest.
Mother did not, however, file a notice of appeal within thirty days of the entry of the final order. Instead, on November 14, 2019, Mother filed a motion for relief from the final judgment under Rule 60.02 of the Tennessee Rules of Civil Procedure. Therein, Mother asserted that her failure to file a timely notice of appeal was...
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