In re William W.

• Docket Number: E2023-00565-COA-R3-PT
• Decision Date: 27 December 2023
• Parties: IN RE WILLIAM W. [1] ET AL.
• Court: Tennessee Court of Appeals

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IN RE WILLIAM W. ^[1] ET AL.

No. E2023-00565-COA-R3-PT

Court of Appeals of Tennessee, Knoxville

December 27, 2023

Assigned on Briefs October 2, 2023

Appeal from the Circuit Court for Cumberland County No. 22CV6876 Caroline E. Knight, Judge

Mother and Father appeal the termination of their parental rights to their three children. The trial court found, relying on the doctrine of res judicata, that the ground of severe child abuse supported termination and concluded that termination of Mother's and Father's parental rights is in the children's best interests. Mother and Father challenge the trial court's determination that the best interest factors support termination. We affirm the judgment of the trial court terminating Mother's and Father's parental rights.

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

Jeffrey A. Vires, Crossville, Tennessee, for the appellant, William W.

Cynthia F. Davis, Crossville, Tennessee, for the appellant, Cleopatra W.

Sherrill A. Rhea, Crossville, Tennessee, Guardian ad Litem for the minor children, William W., Warren W., and Willina W.

Jonathan Skrmetti, Attorney General and Reporter; and Mara L. Cunningham, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services.

JEFFREY USMAN, J., delivered the opinion of the court, in which JOHN W. MCCLARTY and CARMA DENNIS MCGEE, JJ., joined.

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OPINION

JEFFREY USMAN, JUDGE

William W. (Father) and Cleopatra W. (Mother) are the biological parents of three children: William W., Warren W., and Willina W. (collectively, "the Children"). As of the date of trial, the Children were six, four, and two years old respectively. This appeal concerns the May 2022 petition to terminate Mother's and Father's parental rights to the Children on the ground of severe child abuse filed by the Tennessee Department of Children's Services (DCS). The Cumberland County Circuit Court terminated Mother's and Father's parental rights on April 11, 2023. On appeal, Mother and Father contend that the termination of their parental rights was not in the Children's best interest.

DCS first became involved with the family on August 23, 2020, which is the date that Mother gave birth to Willina. A drug test at the hospital confirmed that Mother was under the influence of THC, opiates, and oxycodone, and a subsequent screen revealed that Willina was born with these drugs in her system. Though Father tested negative for any controlled substances at the hospital, he later admitted that he had been smoking marijuana as recently as a month prior to Willina's birth. After receiving Mother's and Willina's test results, DCS requested that both parents participate in programming offered by Multi-Agency Collaboration (MAC) Services. Specifically, representatives from DCS and Child Protective Services directed the parents to Volunteer Behavioral Health for drug and alcohol testing and intensive outpatient treatment (IOP). They also advised Mother to complete programming through the Tennessee Early Intervention System (TEIS) with Willina.

At this point, Mother and Father resided with the Children at an apartment complex in Crossville, Tennessee. After a few months living at this complex,^[2] the family moved into a home located in Crossville, Tennessee, which Father inherited from his uncle. The parties disagree about the habitability of the house. According to DCS, this house lacks electricity and running water. Father disagrees. He maintains that the home has working utilities, but Father acknowledges it suffers from other problems, such as broken windows. DCS did not offer the family assistance in terms of repairing this house. Courtney Wicks-Pelfrey, the DCS caseworker who testified in favor of termination at the final hearing, explained that the Department could not help unless at least one of the parents showed they were earning income through some type of employment. In fact, Ms. Wicks-Pelfrey testified that she personally "encouraged them to get employment, so that way they could maintain any efforts [DCS] made into putting into that home."

DCS filed a petition in Cumberland County Juvenile Court on December 28, 2020, seeking to have the Children declared dependent and neglected. While that petition was

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pending, the parents took some, but not all, of the actions recommended by DCS. For example, while Mother attended seven of twelve scheduled visits at Volunteer Behavioral Health, she did not return a single call from TEIS about entering the program with Willina. Father, meanwhile, failed to appear at the appointment he set up with Volunteer Behavioral Health. According to DCS's dependency and neglect petition, which was entered as a trial exhibit without objection, "[t]he parents [were] sporadic in keeping their appointments with the MAC case manager" during this time.

Both parents also participated in drug screens while the dependency and neglect petition was pending. On April 9, 2021, Father tested positive for methamphetamine, amphetamine, and THC. Four days later on April 13, 2021, Mother tested positive for all three of the same drugs. Based on the results of these drug screens, DCS sought custody of the Children and the trial court granted DCS's request. After the trial court placed the Children in DCS custody on April 14, 2021, each child tested positive for methamphetamine, and Willina also tested positive for THC.

Mother and Father created a permanency plan for the Children in cooperation with DCS on April 28, 2021, which was later updated on November 1, 2021, and April 19, 2022, and that plan was ratified by the juvenile court. Among other things, this plan obligated Mother to refrain from using illegal drugs, attend mental health provider services as well as outpatient treatment, and "provide a home free of emotional and psychological stressors for the children." Father had the same obligations placed upon him, but also assumed a duty to "obtain and/or maintain a legal means of support to meet the family['s] needs by applying for employment" to be proved by "provid[ing] a list of efforts to DCS worker weekly until employment or benefits are obtained."

DCS placed the Children with a foster family on June 1, 2021. As part of this arrangement, the Children live with another foster sibling and an adopted child as well. The Children's foster father testified at the final hearing in this case that the Children entered his care with unaddressed speech impediments. However, each child has reportedly improved during the time they have spent with the foster family, overcoming their respective speech impediments. The Juvenile Court's dependency and neglect order indicates that, after entering the foster home, DCS involved TEIS in the Children's lives to provide support in their development. According to the foster father's testimony, the Children "call me Little Daddy, and they call [my partner] Big Daddy." He also testified that the Children would act out and exhibit aggressive behaviors after each visit with Mother and Father. On cross examination, the foster father noted that the Children still call Mother "Mommy" and Father "Daddy," and acknowledged Father's concerns that discussing adoption could make reunification difficult.

On July 20, 2021, the Cumberland County Juvenile Court entered three child support orders that affect the Children. These three orders, which DCS admitted as exhibits at trial without objection, obligated Father to pay exactly $33.33 a month per child in the

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form of wage garnishments. Father testified that, during the pendency of the case, he held jobs at "CoLinx," McDonald's, and THK Rhythm, the latter of which was still ongoing at the time of trial.

The Cumberland County Juvenile Court adjudicated each child dependent and neglected on July 28, 2021. The trial court concluded that DCS presented clear and convincing evidence to support its petition and proved that "[r]easonable efforts have been made to assist the parents in remedying the conditions that necessitate foster care." The order additionally noted that, while Mother was attending IOP classes at Bradford, "[b]oth parents were drug screened on 6/8/2021 and mom was positive for buprenorphine and THC, and the father for methamphetamine, amphetamine, and THC." It appears that the Juvenile Court also tested both parents on the day of the dependency and neglect hearing, noting "both parents were positive for THC & buprenorphine. Mother reports that she is prescribed buprenorphine, but Father is not." The Juvenile Court concluded that DCS proved by clear and convincing evidence that the Children were "victims of severe child abuse" under Tennessee Code Annotated section 37-1-102(b)(27).

Sparse evidence is included in the record to demonstrate what occurred between the dependency and neglect adjudication and the filing of the petition to terminate the parents' parental rights. Father tried to attend treatment through "Health Connect" as well as a detox through "the New Leaf," a rehabilitation center. Father concedes, however, that he did not fully complete the New Leaf program; he "only completed detox," not full rehabilitation.

DCS filed its petition to terminate Mother's and Father's parental rights to the Children on May 5, 2022. DCS emphasized that the Children had already been deemed to be victims of severe child abuse. Accordingly, DCS raised severe child abuse as a ground for termination pursuant to Tennessee Code Annotated section 36-1-113(g)(4). DCS also argued that the best interests of the Children support terminating Mother and Father's parental rights. Both parents received service of process on June 3, 2022, and Mother subsequently filed an answer to the department's petition. In it, Mother admitted that the Children were adjudicated dependent and neglected on July 28, 2021, but not that the Children were deemed victims of severe child...