Appeal from the Circuit Court for Hamilton County No. 07D672 L. Marie Williams, Judge.
The State of Tennessee Department of Children's Services ("DCS") filed a petition seeking to terminate the parental rights of D.S. ("Mother") to her minor children, Savannah S., Jason S., Chloe S., and Magen*fn1 S. (collectively "the Children"*fn2). After a trial, the Trial Court entered an order finding and holding, inter alia, that there was clear and convincing evidence of grounds to terminate Mother's parental rights to all four of the Children under Tenn. Code Ann. § 36-1-113(g)(2) and (g)(3), and that it was in the best interest of Jason, Chloe, and Magen for Mother's parental rights to be terminated. The Trial Court then held that it was not in the best interest of Savannah for Mother's parental rights to be terminated. Mother appeals the termination of her parental rights to Jason, Chloe, and Magen. DCS and the Children's guardian ad litem appeal the Trial Court's determination that it was not in the best interest of Savannah for Mother's rights to be terminated. We affirm the termination of Mother's parental rights to Jason, Chloe, and Magen. We reverse the Trial Court's finding that it was not in the best interest of Savannah for Mother's parental rights to be terminated and hold that clear and convincing evidence exists that it was in the best interest of Savannah for Mother's parental rights to be terminated as to Savannah.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed, in part; Reversed, in part; Case Remanded
The opinion of the court was delivered by: D. Michael Swiney, Judge
D. MICHAEL SWINEY, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and JOHN W. MCCLARTY, J., joined.
In April of 2007, DCS filed a petition seeking to terminate the parental rights of Mother and her husband, J.S., to the Children who all had previously been adopted by Mother and J.S.*fn3 Mother moved to consolidate the termination case with a pending appeal to the Trial Court of a Juvenile Court finding that the Children were dependent and neglected and that Mother and J.S. had committed severe abuse against Savannah and her adopted sister Selena S.*fn4 The Trial Court consolidated the two actions, and the case proceeded to trial without a jury.
Victoria Davidson, a therapist at the Children's Advocacy Center, testified at trial. Ms. Davidson, a licensed clinical social worker and a registered play therapist with training in forensic evaluations, provides therapy for sexually abused children and does forensic evaluations. Ms. Davidson has counseled around 250 or 300 sexually abused children during her seven years with the Children's Advocacy Center. Ms. Davidson counseled Savannah and Selena after the two came into DCS custody because they had been sexually abused. Ms. Davidson also counseled Chloe. Ms. Davidson testified that Selena was seven years old when she began counseling with Ms. Davidson and that Savannah is a year younger than Selena. Ms. Davidson testified:
Savannah was very small for her age.. She was very, very small. She's - - she was tested out with an IQ of 72, and 70 is mild MR, so she had school problems. She had social skills deficits also. She reported having no friends. But, she was very - - she's an anxious little girl. She would shuffle papers. She would hold a little stack of papers in her left hand and shuffle them, just with her thumb.
Ms. Davidson testified that Savannah's behaviors got better during the time of the counseling, except for the time period when Savannah was visiting with Mother and J.S. Ms. Davidson testified that during that time period:
The shuffling escalated, and the hypervigilance [sic], she - - she would - - if she heard a noise way downstairs, she would jump up and say, What's that, what's that, and I'd have to open the door and check and show her that there was nobody out there. She was always worried, always on guard about somebody coming.
When asked what process she uses to begin counseling, Ms. Davidson testified:
I establish a relationship with the children. Usually, I start working on boundaries, and I establish safety with the child, letting them know that they are safe in my office. I start some educational - - with some educational material, videos, workbooks, that sort of thing.. I use child center play therapy, which is nondirective play therapy. I allow the child to just play, and observe the play.
Ms. Davidson testified that she does not ask the children she counsels what happened. Ms. Davidson testified that at her second session on October 31, 2005, Savannah:
told me that [Mother] had rub - - had rubbed her and rubbed her private parts with a washrag.. Well, I asked her how it happened, if she had been taking a bath, if she was in the bathtub, and she said, no, she was on the living room floor, she had no panties on, and her legs were spread apart, and [Mother] rubbed and rubbed her with a washrag.
Ms. Davidson testified that Savannah said that J.S. was there watching when this happened. Ms. Davidson testified that "[Savannah] said, It hurt, and she said, Her rubbed and rubbed and it hurt." Ms. Davidson also testified that Savannah spoke about this incident on several other occasions and on one occasion "[Savannah] said, Her is my mommy and that's okay," which Ms. Davidson took to mean that Savannah no longer thought that it was a bad touch because it was her mommy that was doing it.
Prior to Savannah's disclosure about Mother, Ms. Davidson had been counseling Savannah for abuse by an adoptive brother, Michael. When asked if Savannah ever told her about the abuse by Michael, Ms. Davidson testified:
She showed me. The children will show you not tell you. So, no, she did not verbally tell me.. When I'm working on boundary issues with children, especially younger children, I do a body outline with them, where we - - you know, they lay down and we outline them and then we draw body parts and we put stickers on the parts of your body where people hurt you, like spider stickers or some kind of bad sticker, and that's where she said, Michael hurt me here, and she put a sticker on her vaginal area, and then she turned it over and put a sticker on her bottom.
Ms. Davidson testified that Savannah "told me that she had told [Mother] [about the abuse by Michael] and [Mother] said that he was going to the Army." When asked why she stopped counseling Savannah in May of 2007, Ms. Davidson testified: "Savannah stated that she was tired of talking about good touches and bad touches, and we had covered everything that we needed to cover."
Ms. Davidson also counseled Selena about sexual abuse perpetrated by her adoptive brother, Michael. Ms. Davidson testified that Selena told Mother about what Michael had done to her and Selena told Ms. Davidson "that her mother had called her a liar and whipped her, and so she went to the school, she told them at school." Selena also told Ms. Davidson that J.S. touched her in the same way that Michael did.
When asked, Ms. Davidson testified that during the time she counseled Selena, Selena never made any statements that were inconsistent with her allegations of being touched inappropriately by Michael and J.S., nor did she ever recant any of the allegations she had made. Savannah likewise never made any inconsistent statements about the allegations and never recanted any of the allegations she had made to Ms. Davidson about inappropriate touching by Michael or Mother.
Ms. Davidson testified that during the time that she was counseling her, Savannah suffered a regression and began using baby talk. Ms. Davidson was told that at that time Savannah had started visiting with Mother and J.S. at Dr. Biller's office. Ms. Davidson testified that it was around that same time that Savannah made the statement "that's okay, her is my mommy, her can do that." During that time period, Ms. Davidson also observed that Savannah "was anxious, more anxious. Very hypervigilant [sic]."
[Savannah] engaged in posttraumatic play, which is a reenactment [sic] of a trauma for a child, and they play it over and over and over again until they resolve it.. Savannah's play was that she would dress up in a police costume and rescue a little girl who's being hurt and take her away and put the bad person in jail, and it would be different figures, different things would be the bad person.
Ms. Davidson testified: "When I last saw Savannah, she was no longer displaying symptoms of PTSD. She was not having nightmares. She was not hypervigilant [sic]. She had stopped the repetitive play. The posttraumatic play was finished. She - - I had not seen her shuffle papers in several months, since March. She was happy."
When asked if she saw anything that would make it difficult for Savannah to adjust if she were put back into Mother's custody, Ms. Davidson testified: "Savannah would have difficulty worrying about Michael being there, that is her very large fear. She has a huge fear of Michael.. That's a safety issue for Savannah." When asked if they could reassure Savannah that Michael was not going to come around if that would effect the situation, Ms. Davidson stated: "I don't know how you would assure her of that.. It would definitely have to be addressed.. She's a child. You're not talking to an adult." When Ms. Davidson was asked if her opinion would change if Mother had known about the sexual abuse and done nothing to stop it, she agreed that a home like that would not be safe for Savannah to be returned to.
Ms. Davidson also counseled Chloe. Ms. Davidson testified that Chloe mentioned Michael one time during the counseling and told Ms. Davidson that Michael was gone and could never touch her again.
Edwinna Eyrich, a foster care mother for the Children, testified at trial. The Children went to Ms. Eyrich's home when they first came into State custody and then left to go into kinship care. Later, several of the Children returned to Ms. Eyrich's home. Ms. Eyrich testified that she had all five of the Children in her home before the Children left to go into kinship care. Selena and Savannah returned to Ms. Eyrich's home first, and Chloe and Magen returned later. Jason did not return to Ms. Eyrich's home but stayed in kinship care with family members.
At the time of trial, Ms. Eyrich had Savannah and Chloe in her home. When asked what Savannah was like when she first came to Ms. Eyrich's home, Ms. Eyrich testified:
Savannah, when she first came into my home, she was very timid, very withdrawn. She - - when we would eat, we always noticed how she put her, you know, her arm around her plate to eat, to feed herself. Very, very shy, very withdrawn, that's what comes to my mind. Very timid.. Anxious. A lot of anxiety.. Savannah, when she first came, as well as now, had a lot of touching issues.. I mean always having to touch someone, whether it's an inappropriate touch or an appropriate touch, and the inappropriate touches would be something in the effect of when she would hug myself, actually, would try to rub my chest. And the other touches would be trying to put her hand under the baby's diaper inappropriately, on the outside of the diaper, but still inappropriately, the way she would do. Kissing, trying to kiss siblings on the mouth, and not just a little kiss, literally trying to kiss like a man and woman would kiss, yes.. She would grab them - - Savannah, when she does that, she grabs and pulls to you - - pulls the person to her and she just clutches them, as well as holding a child down to try to get on them to kiss them.
Another behavior problem that we have that we deal with on a daily - - and I'm talking these are daily basis, this is not, okay, today this is going to happen and tomorrow it's not, okay, this is daily - - is getting blankets, trying to lure whether it was Chloe, Megan, whoever under the blanket with her.
We have put safety precautions in our home just to protect not only the other children, but as well as, you know, my grandchildren, foster children that are to come. I mean, we constantly - - Savannah is never left alone with a child in our home, never. Ms. Eyrich testified that there has been no improvement in Savannah's behavior with regard to the touching issues.
When asked about differences in Savannah since Savannah has been in her home, Ms. Eyrich testified:
Savannah used to have the behavior of shuffling papers. It was an anxiety thing, I'm sure, a compulsion thing, to shuffle, shuffle constant. Savannah no longer does that, no longer at all, and that - - that's a huge change. And the teachers have noticed that, because in school it was try to shuffle, shuffle, instead of - - you know, she couldn't focus. And although there are still some issues on focusing, with the ADHD, she still is not shuffling papers.
Ms. Eyrich testified that Savannah has a lot of anxiety and fears and that Savannah has told her she is afraid of "Michael touching her, hurting her privates. Savannah was very fearful. It probably took us, I don't know, the first year and a half to even get her to realize she was safe and was not going to be hurt again." Ms. Eyrich testified:
Savannah's very fearful of windows in the home, somewhat, Michael coming in. Savannah's very fearful of the skylight that's over, you know, one of our bathtubs. She thinks Michael's up there looking in. And that, that is, actually, as early as just last week, also. A lot of anxieties over stuff like that. Making sure doors are locked at night.. She has another fear of like being spanked with a belt, that she's mentioned, and so she has that fear of I don't want to be spanked with a belt ever again, that, you know, she had been spanked with a belt.. She said that [J.S.] spanked her with a belt, and that he spanked her really, really hard and it really hurt."
When asked if Savannah had reported telling Mother about Michael's abuse, Ms. Eyrich testified:
The only thing I recall her saying on that is that she said [Mother] was on the phone once, when [Mother] had called, she was at work, Michael was babysitting them, he was their babysitter, and [Mother] has [sic] called on the phone and Michael had brought them from the living room into their bedroom. And I had asked her, Well, you know, what was going on? And she said, Well, the phone rang, and it was [Mother] on the other end - - before, I guess, maybe he got to do anything. But, then she said he stopped to talk to [Mother], and then she - - I - - I can't remember what she said after that.
Ms. Eyrich testified that Savannah was six years old when she came to Ms. Eyrich's home and weighed only twenty-seven pounds. Ms. Eyrich stated that at the time of trial, Savannah weighed forty-five pounds.
Chloe, who was around three years old at the time she came to Ms. Eyrich's home, was still on a bottle drinking rice cereal. When asked about Chloe, Ms. Eyrich testified: "Chloe is doing good physically and stuff. Chloe has extreme nightmares. I would, probably, say anywhere from three to seven nights a week, just serious nightmares. I mean, screaming to the point of like it wakes me up into a terror just to hear how she's having a nightmare."
Ms. Eyrich described an incident that happened during the first week that Chloe was in her home stating:
I potty-trained Chloe, started potty-training Chloe, and she had little panties on one day, and we were getting ready to go somewhere, and we had a sunroom in our bathroom right there, and she got up and she was going to go to the bathroom, and before she made it to the bathroom, she just urinated all over herself, and it was on the floor.
Well, all of a sudden - - I didn't see - - I was right there, you know, by the door, but I didn't see it, and she let out this scream that I have never in my life heard. It scared me. She had pottied on herself, and I said, Honey, it's okay. She goes, Please don't hit me with a belt, don't hit me with a belt, please. Just crying, screaming.
Ms. Eyrich further testified:
Chloe's behavior has changed with me. When I - - when Chloe came, she was very stand-offish. You know, you can speak to me, but I don't know that I'm going to answer you. Chloe has progressed so much. She is - - she's gaining weight, she's eating great. She loves school. She's doing great in school. The teacher sends notes home all the time about Chloe, how wonderful, how well she's doing.
And just, probably, about a month ago, we noticed - - well, I guess about six weeks ago, we noticed this turn in Chloe's life that was so exciting to us, because all of a sudden Chloe is totally open to us. She's not only hugging and, you know, just -- she just is so carefree now. She just - - it's like she just blossomed into this beautiful flower that wasn't there before.
I would love to adopt these children, except with Savannah, I can't be guaranteed of how I could do this on a daily basis forever, unless there was some kind of help or -- you know, more than what we know now of what to do, you know, with the touching issues, to protect my children in my home, my grandkids. You know, but then to think of saying just, outright, no, I - - you know, my heart says different.
Magen is not in Ms. Eyrich's home anymore. When asked why Magen was not in her home anymore, Ms. Eyrich testified:
There was a particular reason, yes. She - - very high maintenance. She was very - -Megan needed one-on-one attention. Megan had - - to me - - and this is just as a mother. To me, Megan - - all of these children, not only Megan, were so needy when they came into my home that the first two weeks I looked and I had no clue how I would do this, because I didn't know how - - I didn't know I could even find any more of any of us to give them the love that they needed. They were - - it was like they were starved. They were like sponges, so hungry. Megan needed a lot of oneon-one that I couldn't give her at the time, and I wish I could have.
When asked why Selena left her home, Ms. Eyrich testified:
Selena had a lot of acting out that we just didn't think we could handle.. It was just - - Selena had a lot of - - the abuse was constant on Selena's mind, and that - - that's what she talked about a lot. As far as having a lot of crying breakdowns herself, that's why that we took her to the emergency room on one of them, because we just weren't sure, you know, was she okay, was she not okay.
David Allen Rose, Ph.D., a psychologist who does work primarily for DCS, testified at trial. Dr. Rose was asked if he had any concerns about Savannah's behavior in the foster home and he testified:
Well, I have concern, like the foster mother would have concern about her behavior, but it's quite clear that there is some positive things that are going on in terms of stabilization. When a child comes in the way she was described as coming in, as very, very underdeveloped and - - and having such severe and relatively inappropriate behaviors for her age, there is a major gap that had to be supported.
In the case - - in the research that I've shown - - that I've seen, it's real evident that the most protective factors to help children who have been severely abused come from the care-taking parent, if they're provided in a trusting and consistent fashion, and that's probably the most important variable that can help a child improve and make - - make gains. It sounded like the foster parent has done a good job of trying to provide that consistency and - - and protect and support that has helped enhance those protective factors for this - - this child.
When asked what the effect would be on a child who was being sexually abused and not protected by a parent, Dr. Rose testified:
Well, the - - research has shown that it's significantly poor social/psychological outcomes for kids that have been faced with complex trauma, maltreatment, whether it be - - it's done simultaneous or continuous. It affects multiple domains of the child's life, both at the time and continuously throughout their lives, and the outcomes are typically very poor.. They have a difficult time attaching to people. They have a difficult time establishing relationships, socially adjusting to life demands oftentimes. Less effective in life, in general, than children who are not maltreated. Issues of - - there is some increasing research that there is poor neurological impact on the children's development, suggesting that there are ways of regulating emotion and the functions of the brain, like the amygdala and the hypothalamus, and the things that relate to emotional regulation are significantly compromised, and that affects the way they process information as they get older.
When asked if Savannah's behaviors of inappropriate touching and kissing were typical of a girl of her age, Dr. Rose testified:
As I understand developmental psychology and the development of children, no, those are not typical behaviors. They are extreme behaviors that are seemingly not responsive to repeated guidance at this point.. I think the literature and the results of a lot of work with sex abuse suggests that people that have been abused continue to focus on becoming over-sexualized and acting out sexually.
When asked how long it might take for Savannah to resolve these issues, Dr. Rose testified:
Well, that's like a crystal ball. I'm not sure how long it might take. If she's held onto it this long, it probably indicates that she was very severely traumatized, and that the impact of that continues to fester with fears of - - as we've described before, of the perpetrator coming back at any point in time, through windows and skylights and such. So I'm sure it remains real and it's going to take a lot of time, with a lot of trust, and a lot of consistency by caregivers [sic] and - - to help a child that is relatively low-functioning to start believing and accepting that they're safe.
Mother testified at trial that she is a registered nurse and has been for nineteen years. She works on a critical care floor and also has been a therapeutic and regular foster parent for about twelve years. Mother testified that during the time she has been a foster parent, over a dozen foster children of various ages and both sexes have lived in her home. Michael was her first foster child, and he came to her approximately fifteen or sixteen years ago when he was four years old. At that time, Mother and J.S. were married and Mother's biological son and daughter, Scott and Tanya, lived in the house. Additionally, J.S.'s biological children, Mandy and Sean, spent every other week in the household with Mother and J.S.
Mother and J.S. adopted Savannah from Romania in 2000. Mother and J.S. adopted Chloe from China in 2002 or 2003. Mother was asked why she went overseas to adopt children when it appeared that she already had a household full of children and she testified:
Well, you know, it's easy - - I mean, not real easy, but in - - you know, there's a lot of people that want to adopt in the United States, and there's like a seven-year wait for a young child, anyway, to adopt a baby or a young child, and I just started seeing these television programs about these children that were in poor health and needed homes, and so I started inquiring about it. I went through the Catholic charities here in Chattanooga, took all their classes, got my certificate through them, and I realized it was going to cost me about $20,000 or more, so then I started shopping around for a little bit cheaper rate, to see what I could, actually, afford and how I could go about it, and that's how I ended up with All of God's Children, and that's who I adopted through. Which you start out with the home study, an international home study, which is like $1,500. It's much more extensive than the regular home study you go through here. And then you've got about an 18-month wait, of coming up with money, travel expenses and all of that.
Savannah had lived with Mother for approximately five years before being taken into State custody, and Chloe had lived with Mother for approximately two years at that time. At the time Savannah was adopted, Mother had her biological daughter Tanya and her adopted son Michael living in the household along with several therapeutic foster children.
Mother testified that during the summer of 2004, Michael was interviewed by authorities because a therapeutic foster child in a psychiatric hospital in Knoxville had made allegations of being touched by a former foster brother whose name she could not remember. Mother testified that Michael was cleared of that allegation. At that time, Mother was living in Georgia, and she sent Michael to Tennessee to live with Tanya so that he could be interviewed. Mother testified that Michael continued to live in Tennessee after that incident. When asked why Michael remained in Tennessee, Mother testified:
More than one reason. Michael was in high school when we moved to Chatsworth, Georgia. He never really made a lot of close friends there. He had close friends in Tennessee. A matter of fact, the home right across the road from us, where he presently resides, he had friends, and he just was more comfortable there, so he was still living in my home, with my birth daughter, so I didn't see that there was a problem, and if that's what he wanted to do, that was fine with me.
Mother and J.S. adopted Selena, Jason, and Magen in June of 2005 in the State of Georgia. After Mother adopted Selena, Jason, and Magen in Georgia, the family moved back to Tennessee. However, Jason did not move into the house with Mother, J.S., and the other Children, but instead went to live with Mother's biological son and his wife, Scott and Lenes. Mother testified:
Lenes has had several miscarriages, and they never had a son, and once they started visiting us in Georgia, she - - they had become very bonded with Jason, and so she was like coming down and picking him up a couple days and keeping him on her days off, and every moment she could be around him, she was around him. So they had developed a relationship, and they even met the birth mother, so it was in everybody's agreement that that would be the best place for Jason.
Mother testified that Scott and Lenes filed to adopt Jason before the Children were taken into State custody. After the Children were taken into State custody, DCS placed Jason back into Scott's and Lenes's home, and Jason remained there through the time of trial. DCS is in favor of Scott and Lenes adopting Jason, but Mother opposes having her rights to Jason terminated. Mother stated: "I do not want my rights terminated to Jason. He can - - they can proceed to adopt him from me, as we originally planned." Mother admitted that the total amount of time that Jason lived with her was during a period of about six months and that during that time Jason spent several days each week with Scott and Lenes. When asked, Mother insisted that Jason did bond with her and stated "he bonds with me as a grandparent. He calls me Grandma." Mother admitted that there is no parent/child bond between her and Jason.
Mother testified that Selena is a liar, but testified that she does not think that Savannah lies. Mother testified that she thinks the foster mother is lying about Savannah's behaviors "[b]ecause Savannah was nothing like that."
Mother was asked about the sexual abuse perpetrated by Michael, and the following exchange occurred:
Q: So, to this day, you still don't believe that Michael sexually abused either one of those children?
A: If he did, I don't know how he did it.
Q: No. The question is, Do you or don't you?
A: Do I believe it? If Savannah believes it, I believe it.
Q: That's not an answer to my question.
A: I don't know how, but if - - if that's what she believes, then I'm going - - I'm going to say I ...