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State Dep't of Children's Services v. Hardin5/26/2005
nager Ms. Prater. This Plan listed dual goals of return to parent and adoption. The Plan also identified five "risks, needs or problems" that Kelley would need to remedy in order to gain custody. Those areas of concern included the fact that Kelley had not been the care giver for T.H., that Kelley had a history of domestic violence, a history of drug and alcohol abuse, and had been "aggressive and uncooperative" at the beginning of the case, and that T.H. was Hepatitis C positive. As outlined above, the Plan clearly outlines the actions needed to reduce the risks and resolve the problems raised. Furthermore, for each of these actions, the Plan provides an expected achievement date and clearly indicates that Kelley is to take at least some of the responsibility for completing these goals. From our review of the permanency plans, including revisions thereof throughout the course of these proceedings, we find that the permanency plans comply, in terms of specificity and content, with the requirements of T.C.A. §37-2-403.
Substantial Noncompliance
As discussed by this Court in In re M.J.B., 140 S.W.3d 643 (Tenn. Ct. App. 2004):
Terminating parental rights based on Tenn.Code Ann. § 36-1- 113(g)(2) requires more proof than that a parent has not complied with every jot and tittle of the permanency plan. To succeed under Tenn.Code Ann. § 36-1-113(g)(2), the Department must demonstrate first that the requirements of the permanency plan are reasonable and related to remedying the conditions that caused the child to be removed from the parent's custody in the first place, In re Valentine, 79 S.W.3d at 547; In re L.J.C., 124 S.W.3d 609, 621 (Tenn.Ct.App.2003), and second that the parent's noncompliance is substantial in light of the degree of noncompliance and the importance of the particular requirement that has not been met. In re Valentine, 79 S.W.3d at 548-49; In re Z.J.S., 2003 WL 21266854, at *12. Trivial, minor, or technical deviations from a permanency plan's requirements will not be deemed to amount to substantial noncompliance. In re Valentine, 79 S.W.3d at 548; Department of Children's Servs. v. C.L., No. M2001-02729-COA-R3-JV, 2003 WL 22037399, at (Tenn.Ct.App. Aug.29, 2003) (No Tenn. R.App. P. 11 application filed).
Id. at 656-57.
In the instant case, the permanency plans require Kelley to attend parenting class(es), to participate in anger management counseling, to submit to alcohol and drug assessment and follow any recommendations made. In addition, Kelley was required to cooperate with DCS in terms of making sure DCS had access to all relevant documentation, and Kelley was also required to participate in counseling to gain insight and instruction on dealing with T.H.'s Hepatitis C. DCS does not contest the fact that Kelley complied with the requirements concerning counseling for Hepatitis C, nor does DCS contend that Kelley was not cooperative in giving them access to the appropriate paperwork. However, DCS asserts that Kelley has failed to substantially comply with the permanency plans in terms of his attending parenting class(es), participating in anger management, and submitting to alcohol and drug assessment and following the recommendations thereof. Turning to the record, we address each of these three requirements in turn to determine whether Kelley substantially complied with each.
Parenting Classes
Concerning the question of exactly what type and what number of parenting classes were required under the permanency plans, Ms. Prater, the DCS case manager, testified, in relevant part, as follows:
Q: Now, you wanted him [Kelley] to go to a parenting class?
A: Uh huh.
Q: An
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