Summary
In Weidman v. Chambers, No. M2007-02106-COA-R3-PT, 2008 WL 2331037, (Tenn. Ct. App. June 3, 2008), we reiterated that courts must strictly comply with procedural requirements in termination of parental rights cases and determined that a petition alleging that a mother willfully failed to visit and support her children during the four months preceding the filing of the petition was insufficient to give notice that the four-month period prior to mother's incarceration would be used to find abandonment as defined in Tenn. Code Ann. § 36-1-102(1)(A)(iv).
Summary of this case from In re Landon H.Opinion
No. M2007-02106-COA-R3-PT.
April 10, 2008 Session.
Filed June 3, 2008.
Appeal from the Juvenile Court for Davidson County; No. 56847, 2003-1996; Betty Adams Green, Judge.
Judgment of the Juvenile Court Reversed.
Thomas H. Miller, Nashville, Tennessee, for the appellant, Brittany Renee Chambers.
C. Michael Cardwell, Nashville, Tennessee, for the appellees, Patti and James Weidman.
Gayle Dimmick, Nashville, Tennessee, Guardian Ad Litem.
Andy D. Bennett, J., delivered the opinion of the court, in which Patricia J. Cottrell, P.J., M.S., and Richard H. Dinkins, J., joined.
OPINION
Mother appeals the trial court's decision terminating her parental rights, arguing that the trial court erred in finding that she abandoned the children and in finding that the conditions that led to the children's removal from her custody persisted and were not likely to be remedied at an early date. Because we have concluded that the petitioners failed to provide sufficient notice regarding the abandonment grounds and did not present clear and convincing evidence of the other ground for termination, we reverse the decision of the trial court.
This case involves the parental rights of Brittany Renee Chambers regarding two children, a daughter, D.A.F.W., born in 2002, and a son, D.H.T.W., born in 2004. Each of these children has been in the custody of one or both of the petitioners, Patti and James Weidman ("the Weidmans"), since before the age of one.
At the time of the hearing, Ms. Chambers was pregnant with a third child.
I. FACTUAL AND PROC EDUR A L BACKGROUND
For most of her adult life, Ms. Chambers has been involved in drug abuse and related legal problems, including periods of incarceration. She began a relationship with Brian Work in early 2001. A few months later, Ms. Chambers was charged with prescription fraud, a charge to which she pled guilty in December 2001. As part of her probation, she was furloughed to the Rutherford County drug court program, which she completed in April 2003.
In the fall of 2002, Ms. Chambers and Mr. Work had their first child, D.A.F.W. In June 2003, the child was brought to the Weidmans, Mr. Work's mother and stepfather, after a domestic violence incident that sent Ms. Chambers to the hospital and Mr. Work to jail. Soon after, Ms. Chambers was incarcerated on drug charges. Ms. Weidman filed a petition for temporary custody on July 7, 2003, and retained physical custody of D.A.F.W. Ms. Weidman took the child to see her mother several times while the mother was in jail. After her release from jail in September 2003, Ms. Chambers entered Buffalo Valley, a treatment facility, for 21 days. She visited her daughter on the child's birthday.
Ms. Chambers pled guilty in December 2003 to charges of obtaining drugs by fraud and prescription fraud from May and June 2003. In November 2003, she was charged with obtaining a scheduled drug by fraud; she pled guilty to this charge in July 2004.
On January 28, 2004, the juvenile court entered an agreed order for custody regarding Ms. Weidman's petition. D.A.F.W. was found to be a dependent and neglected child because she was abandoned when her parents were incarcerated and because of her mother's untreated drug problems. Ms. Chambers had recently been released from jail at the time of the hearing. The guardian ad litem was to do a home study on Ms. Chambers; if it was favorable, she would have ten hours per week with her daughter. Until completion of the home study, visitation was at Ms. Weidman's discretion. According to Ms. Weidman, Ms. Chambers made sporadic visits, sometimes going for months without calling to check on the child.
It is not entirely clear whether a home study was ever completed. The guardian ad litem testified that she attempted a home study on one occasion and was denied access to the home. Visitation remained at Ms. Weidman's discretion.
In the fall of 2004, Ms. Chambers and Mr. Work had their second child, D.H.T.W. In February 2005, another domestic violence incident led to the removal of the child from the parents by the Department of Children's Services. As a result of this incident, both parents were subsequently convicted of reckless endangerment, possession of marijuana, and possession of drug paraphernalia. The Department of Children's Services filed a petition for custody with a request for emergency removal. At the preliminary hearing, the parties agreed for pendente lite custody of D.H.T.W. to be with the Weidmans. The order entered on February 16, 2005, gave Ms. Chambers visitation with D.H.T.W. under the supervision of a friend, Kim Lear. Ms. Lear supervised approximately four visits and then declined to continue in that role.
Not surprisingly, Ms. Chambers's drug use and legal difficulties negatively affected her employment and housing. According to Ms. Chambers's testimony, she had a job at Jersey Mike's from February 2005 until April 2005 and at Picture Perfect in April and May 2005. From October 2002 through January 2006, Ms. Chambers had approximately ten different residences.
The trial on the DCS petition regarding D.H.T.W. was held on May 31, 2005. Ms. Chambers did not appear at the hearing. The child was found to be dependent and neglected due to his exposure to drugs and domestic violence and due to his parents' incarceration. Temporary custody was to remain with the Weidmans, and Ms. Chambers's visitation rights were "suspended until a further hearing by this Court."
Mr. Work was incarcerated from February through November 2005.
During the period of time from May 2005 through October 2005, Ms. Chambers, by her own description, "hit bottom." She used crack cocaine heavily and "literally slept on benches and on the street." Ms. Chambers states that she wanted to die. According to Ms. Weidman, Ms. Chambers did not even call to check on the children from May 2005 until December 2005. In August 2005, Ms. Chambers was charged with prostitution, unlawful use of drug paraphernalia, and criminal trespass. She was charged with additional offenses in September 2005.
In October 2005, Ms. Chambers pled guilty to multiple offenses from February, August, and September 2005. She was incarcerated from October 2005 through January 2006. In January 2006, she pled guilty to obtaining prescription drugs by fraud, a charge from January 2005, and was sentenced to four years of community corrections. She moved into a halfway house. Out of jail only a few weeks, Ms. Chambers was reincarcerated in early February 2006 after testing positive for Lortab and Xanax, a violation of her probation. In March 2006, Ms. Chambers sent letters to DCS and to her attorney inquiring about what she needed to do to get visitation with her children.
As part of community corrections, Ms. Chambers was accepted into a new dual disorders program for those with mental health and drug issues. Through that program, she received treatment for her bipolar disorder and substance addiction. After serving six months in jail for the probation violation, Ms. Chambers entered a 45-day inpatient treatment program at Elam Mental Health Center at Meharry General Hospital on July 10, 2006. At Elam, she received therapy and counseling in domestic violence, anger management, relapse prevention, parenting skills, and medication management. When she was discharged from Elam on August 24, 2006, Ms. Chambers entered another halfway house, The Next Door.
Meanwhile, the Weidmans filed their petition for termination of parental rights against Ms. Chambers and Mr. Work on July 14, 2006. On August 24, 2006, Ms. Chambers filed a petition to reinstate visitation. After a hearing in late September 2006, Ms. Chambers was given supervised visitation for two or three hours two days a month.
After she became pregnant, Ms. Chambers had to move to another halfway house, Harmony House, where she remained until February 14, 2007. Upon leaving the Harmony House, Ms. Chambers lived with Robert McElhiney, a family friend; she paid him $200 a month for rent and $10 a week for gas.
The trial on the petition for termination of parental rights was held over four days in March and April 2007. At the time of the trial, Ms. Chambers had been drug free for 13 months and out of jail for seven months. She had been working at C-TEL since October 2006. The proof included testimony from Ms. Chambers, the Weidmans, Mr. Work, Ms. Lear, Mr. McElhiney, Ms. Chambers' community corrections case officer, and her counselor. The children were represented by the guardian ad litem. The court found clear and convincing evidence that grounds for termination of the parental rights of Ms. Chambers and Mr. Work existed and that termination was in the best interest of the children. The court based its decision to terminate the parental rights of Ms. Chambers on three grounds: (1) abandonment pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(iv) for willful failure for four months preceding her incarceration to visit or engage in more than token visitation; (2) abandonment pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(A)(1)(iv) for willful failure for four months preceding her incarceration to make reasonable payments toward support of the children; and (3) pursuant to Tenn. Code Ann. § 36-1-113(g)(3)(A) for failure to remedy persistent conditions that led to the children's removal. Ms. Chambers has appealed, challenging the grounds upon which the trial court based its decision to terminate her parental rights.
Mr. Work has not appealed the decision.
II. STANDARDS FOR TERMINATION OF PARENTAL RIGHTS
A parent has a fundamental right to the care, custody, and control of his or her child. Stanley v. Illinois, 405 U.S. 645, 651 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174-75 (Tenn. 1996). Thus, the state may interfere with parental rights only if there is a compelling state interest. Nash-Putnam, 921 S.W.2d at 174-75. Terminating a person's parental rights "has the legal effect of reducing the parent to the role of a complete stranger." In re W.B., IV., No. M2004-00999-COA-R3-PT, 2005 WL 1021618, *6 (Tenn.Ct.App. Apr. 29, 2005). Pursuant to Tenn. Code Ann. § 36-1-113(l)(1), "[a]n order terminating parental rights shall have the effect of severing forever all legal rights and obligations of the parent or guardian of the child against whom the order of termination is entered and of the child who is the subject of the petition to that parent or guardian."
Our termination statutes identify "those situations in which the state's interest in the welfare of a child justifies interference with a parent's constitutional rights by setting forth grounds on which termination proceedings can be brought." In re W.B., 2005 WL 1021618, at *7 (citing Tenn. Code Ann. § 36-1-113(g)). To support the termination of parental rights, petitioners must prove both the existence of one of the statutory grounds for termination and that termination is in the child's best interest. In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002); Tenn. Code Ann. § 36-1-113(c).
Because of the fundamental nature of the parent's rights and the grave consequences of the termination of those rights, courts must require a higher standard of proof in deciding termination cases. Santosky v. Kramer, 455 U.S. 745, 769 (1982); Matter of M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn.Ct.App. 1998). Thus, both the grounds for termination and the best interest inquiry must be established by clear and convincing evidence. Tenn. Code. Ann. § 36-1-113(c)(1); In re Valentine, 79 S.W.3d at 546. Clear and convincing evidence "establishes that the truth of the facts asserted is highly probable" and "eliminates any serious or substantial doubt about the correctness of the conclusions drawn from the evidence." In re M.J.B., 140 S.W.3d 643, 653 (Tenn.Ct.App. 2004). Such evidence "produces in a fact-finder's mind a firm belief or conviction regarding the truth of the facts sought to be established." Id. at 653.
In light of the heightened standard of proof in these cases, a reviewing court must adapt the customary standard of review set forth at Tenn. R. App. P. 13(d). Id. at 654. As to the trial court's findings of fact, our review is de novo with a presumption of correctness unless the evidence preponderates otherwise, in accordance with Tenn. R. App. P. 13(d). Id. We must then determine whether the facts, as found by the trial court or as supported by the preponderance of the evidence, clearly and convincingly establish the elements necessary to terminate parental rights. Id.
III. ANALYSIS Abandonment
The trial court found that Ms. Chambers had abandoned the children based upon two grounds: willful failure to visit during the four months preceding her incarceration and willful failure to support during the four months preceding her incarceration pursuant to Tenn. Code. Ann. § 36-1-102(1)(A)(iv). Ms. Chambers challenges both findings based upon a due process argument. She further argues that neither ground was proven by clear and convincing evidence.
Notice
Ms. Chambers first argues that neither abandonment ground found by the trial court was alleged in the petition and that she did not have sufficient notice of those grounds.
The petition filed by the Weidmans contains the following pertinent allegations with regard to grounds for termination:
(a) Pursuant to T.C.A. § 36-1-113(g)(1) and 36-1-102(1), Mother has willfully abandoned the children in that for a period of four (4) consecutive months immediately proceeding [sic] the filing of this petition Mother has willfully failed to visit the children. . . .
(b) Pursuant to T.C.A. § 36-1-113(g)(1) and 36-1-102(1) Mother and Father have willfully abandoned the children in that for a period of four (4) consecutive months immediately proceeding [sic] the filing of this petition they have willfully failed to support or make reasonable payments toward the support of the children.
(Emphasis added). Thus, the petition alleges that Ms. Chambers willfully failed to visit and willfully failed to support the children during the four months immediately preceding the filing of the petition. These grounds for abandonment are defined in subsection (i) of Tenn. Code Ann. § 36-1-102(1)(A). However, during the four months immediately preceding the filing of the petition, Ms. Chambers was incarcerated. Therefore, the trial court found in its decision that Ms. Chambers had abandoned the children as defined in subsection (iv) of Tenn. Code. Ann. § 36-1-102(1)(A), which refers to the four months immediately preceding the incarceration of the parent. In re W.B. involved a similar set of facts. In re W.B., 2005 WL 1021618, at *1. In that case, the petition alleged that the father had abandoned the child because he had willfully failed to pay support or maintain regular contact with the child for the four months immediately preceding the filing of the petition. Id. at *9. The petition's language tracks subsection (i) of Tenn. Code Ann. § 36-1-102(1)(A). The trial court found that the father had abandoned the child on the basis that he had failed to pay support during the four months prior to the filing of the petition. Id. However, the father was incarcerated during the four months prior to the filing of the petition, so subsection (i) could not properly be applied to him. Id. The petitioners argued that, although the court did not make such a finding, they had also proved that the father had willfully failed to support the child during the four months prior to his incarceration. Id. at *10. In rejecting this argument, the court stated:
Tenn. Code Ann. § 36-1-102(1)(A)(i) defines abandonment as follows: "For a period of four (4) consecutive months immediately preceding the filing of a proceeding or pleading to terminate the parental rights of the parent(s) or guardian(s) of the child who is the subject of the petition for termination of parental rights or adoption, that the parent(s) or guardian(s) either have willfully failed to visit or have willfully failed to support or have willfully failed to make reasonable payments toward the support of the child."
Tenn. Code Ann. § 36-1-102(1)(A)(iv) defines abandonment as follows: "A parent or guardian is incarcerated at the time of the institution of an action or proceeding to declare a child to be an abandoned child, or the parent or guardian has been incarcerated during all or part of the four (4) months immediately preceding the institution of such action or proceeding, and either has willfully failed to visit or has willfully failed to support or has willfully failed to m ake reasonable payments toward the support of the child for four (4) consecutive months immediately preceding such parent's or gu ardian's incarceration, or the parent or guardian h as en gaged in co nduct prior to incarceration that ex hibits a wanton disregard for the welfare of the child."
However we have reviewed the petition and find no allegation of a ground based on willful failure to support during the four months preceding Father's incarceration. The petition specifically alleges only one ground: abandonment by willful failure to support or visit for the four month period immediately preceding the filing of the petition. This pleading limited the ruling to that ground because to find otherwise would place the parent at a disadvantage in preparing a defense. See In re M.J.B., 140 S.W.3d 643, 651 (Tenn.Ct.App. 2004) (holding that because of the fundamental nature of parental rights, courts must take a very strict view of procedural omissions that could put a parent at a disadvantage in preparing for trial).
In re W.B., 2005 WL 1021618, at *10.
This same analysis leads us to conclude that Ms. Chambers did not receive proper notice of the abandonment grounds. We disagree with the reasoning of the trial court and the argument of the Weidmans that the petition's general reference to Tenn. Code Ann. § 36-1-102(1) gave Ms. Chambers notice that the four-month period prior to her incarceration would be applied. The allegations contained in the Weidmans' petition specifically refer to the four months prior to the filing of the petition, not to the four months before Ms. Chambers' incarceration. The statement in the petition that Ms. Chambers failed to take legal action to reinstate her visitation after it was suspended by the court in May 2005 was not sufficient to put Ms. Chambers on notice of the applicable time period. The result in In re W.B. negates the trial court's rationale. As stated in In re W.B. and In re M.J.B., courts must strictly apply the procedural requirements in cases involving the termination of parental rights. In re W.B., 2005 WL 1021618, at *10; In re M.J.B., 140 S.W.3d at 651.
Even if a petition fails to identify the grounds for termination, it can be argued that the appropriate ground was tried by implied consent of the parties. See In re S.M.N., No. E2005-01974-COA-R3-PT, 2006 WL 1814852, *6 (Tenn.Ct.App. June 30, 2006). We cannot, however, conclude on the basis of the record in this case that Ms. Chambers impliedly consented to try the grounds of Tenn. Code. Ann. § 36-1-102(1)(A)(iv). The Weidmans did not specifically reference abandonment based on the four months prior to Ms. Chambers' incarceration until their closing arguments at the hearing. While there was some testimony concerning the four months prior to her incarceration (June 2005 through October 2005), that evidence was also relevant in the best interest inquiry and, therefore, would not necessarily indicate to Ms. Chambers that the Weidmans were arguing different grounds for abandonment than those cited in the petition. We do not find that the grounds described in Tenn. Code. Ann. § 36-1-102(1)(A)(iv) were tried by implied consent.
Proof
Given our conclusion that proper notice was not given by the petitioners with respect to the abandonment grounds, we need not address Ms. Chambers' argument concerning the failure of proof.
We would note, however, that at least with respect to abandonment by willful failure to visit, it does not appear that abandonment was proven by clear and convincing evidence. The trial court suspended Ms. Chambers's visitation with respect to the younger child, D.H.T.W ., by order dated M ay 31, 2005. W hen visitation has been suspended by court order, a parent's failure to visit cannot be considered willful. State v. Wiley, No. 03A01-9903-JV-00091, 1999 WL 1068726, *7 (Tenn.Ct.App. Nov. 24, 1999). Ms. Chambers' visitation with the older child arguably remained subject to M s. W eidman's discretion. Ms. W eidman testified, however, that, after the court suspended M s. Chambers' visitation with D.H.T.W., Ms. Weidman and the guardian ad litem "had discussed it, and she [the guardian ad litem] said if there's no visitation for one child I don't see why there should be visitation for the other." Under the circumstances, we cannot conclude that the petitioners established by clear and convincing evidence that Ms. Chambers' failure to visit the children during the relevant time period was willful.
Persistent conditions
The trial court also terminated Ms. Chambers's parental rights pursuant to Tenn. Code Ann. § 36-1-113(g)(3), which provides that termination may be based upon the following ground:
The child has been removed from the home of the parent or guardian by order of a court for a period of six (6) months and:
(A) The conditions that led to the child's removal or other conditions that in all reasonable probability would cause the child to be subjected to further abuse or neglect and that, therefore, prevent the child's safe return to the care of the parent(s) or guardian(s), still persist;
(B) There is little likelihood that these conditions will be remedied at an early date so that the child can be safely returned to the parent(s) or guardian(s) in the near future; and
(C) The continuation of the parent or guardian and child relationship greatly diminished the child's chances of early integration into a safe, stable and permanent home.
Ms. Chambers argues that the Weidmans failed to prove the requirements of subsections (A) and (B) by clear and convincing evidence.
The parties agree that the trial court correctly identified the conditions that led to the removal of Ms. Chambers's two children from her custody: drug use, criminal activity, domestic violence, unstable housing, and periods of incarceration. The question presented for our determination is whether the Weidmans proved by clear and convincing evidence that these conditions persisted and that there was little likelihood they would be remedied at an "early date." Tenn. Code Ann. § 36-1-113(g)(3)(A), (B). We will examine the evidence on each condition in turn.
The Weidmans do not argue that there were "other conditions that in all reasonable probability would cause the child to be subjected to further abuse or neglect." Tenn. Code Ann. § 36-1-113(g)(3)(A).
Drug use. As acknowledged by the trial court, Ms. Chambers had been drug free for 13 months at the time of the hearing. Seven of these months were after her release from incarceration and in-patient treatment. In its opinion, the court cited Ms. Chambers's history of relapsing shortly after completing previous treatment programs. This time, however, Ms. Chambers participated in the dual disorders program, which addressed her mental health issues as well as substance abuse problems. Her ability to remain drug free for over a year suggests a significant change in her condition.
The trial court also cited the fact that Ms. Chambers was only in phase two of the four phases of the community corrections program. Her community corrections case officer, Brandy Jimerson, testified that Ms. Chambers had made "fair" progress in the dual disorders program. At the time of the hearing, Ms. Chambers was in compliance with her court order. Ms. Jimerson discussed some problems that Ms. Chambers had in progressing through the program, including her positive drug screen in February 2006. Ms. Chambers went through inpatient treatment in July and August 2006. Ms. Jimerson testified that Ms. Chambers had been denied a move up to the next level a couple of times due to not having stable employment or failure to complete required community service work. At the time of the hearing, Ms. Chambers had turned in the necessary community service hours, and her file was to be reviewed for phase three of the program that week.
Criminal activity. The record indicates that Ms. Chambers' last criminal charges occurred in September 2005. She violated probation in February 2006. There is no evidence in the record that Ms. Chambers had additional criminal charges during the period of time after her release from incarceration in July 2006 until the trial in March and April 2007.
Domestic violence. Ms. Chambers and Mr. Work have a history of domestic violence. At the time of the hearing, Mr. Work was incarcerated for a positive drug screen, a probation violation. No evidence was presented to show that Ms. Chambers had been involved in domestic violence since the incident in February 2005 that led to the removal of D.H.T.W. from her custody.
Some of the most troubling evidence concerning Ms. Chambers' prospects for lasting recovery relates to her continuing relationship with Mr. Work. Although her probation conditions prohibited her from having contact with Mr. Work, Ms. Chambers admitted to visiting him in jail and giving him money. At the time of the hearing, she was pregnant, and she identified Mr. Work as the child's father. Ms. Chambers's continuing relationship with Mr. Work and their history of drug abuse and criminal activity caused the trial court to express "serious concerns about the choices the Mother continues to make." We agree with the trial court's concern as to Ms. Chambers' ability to stay drug free and out of criminal trouble in light of her propensity to remain affiliated with Mr. Work. Ms. Chambers testified that, if Mr. Work did not abstain from drug use, she would choose her children's safety over him.
Unstable housing. Ms. Chambers has never been in a position to provide stable housing for her children. The record does contain evidence that she is working to rectify that problem. After her release from inpatient care in August 2006, Ms. Chambers lived in two halfway houses. She began working and earning money. At the time of the hearing in late March and early April 2007, Ms. Chambers had been working as a telemarketer at C-TEL since October 2006. In February 2007, Ms. Chambers moved out of the halfway house and moved in with a family friend, Mr. McElhiney. Ms. Chambers and Mr. McElhiney testified that she paid him $200 a month in rent and $10 a week in gas money to provide her with transportation. This allowed her to save money toward getting her own place and getting her driver's license back. Ms. Chambers testified that she expected to be able to rent her own apartment within two months.
In its decision, the trial court expressed concern over Ms. Chambers' living arrangement with Mr. McElhiney because he was her charge partner on one of her prescription fraud charges. Ms. Chambers testified that Mr. McElhiney's only involvement was that he provided her with transportation and that he was not aware of what was going on. Mr. McElhiney testified that the charges against him had been dismissed and his record was expunged. Under these circumstances, we do not agree that Ms. Chambers' decision to live with Mr. McElhiney, an arrangement that allowed her to save money toward getting her own apartment, should be held against her. We do find some cause for concern in Ms. Chambers's failure to fully advise her probation officer of Mr. McElhiney's involvement in her prior charges.
Periods of incarceration. As already discussed, at the time of the hearing, Ms. Chambers had been out of jail since July 2006 and had no pending criminal charges.
Looking at the evidence as a whole, we do not find clear and convincing evidence that, at the time of the hearing, the problems that led to the removal of Ms. Chambers' children persisted and were not likely to be remedied at an early date. The fact that Ms. Chambers had remained drug free for 13 months suggests the opposite conclusion-that she was turning her life around. Although Ms. Chambers still was not able to provide stable housing, she was working to remedy that problem and was saving money to get her own place in two months. The record does not contain clear and convincing evidence that there was "little likelihood" that any persistent problems would be remedied in the near future. We conclude that the petitioners failed to meet their burden of proving by clear and convincing evidence facts necessary to meet the requirements of Tenn. Code Ann. § 36-1-113(g)(3).
IV. CONCLUSION
For the reasons discussed above, we reverse the decision of the trial court. Costs of appeal are assessed against the appellees, Patti and James Weidman.