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In re Austin A.

Court of Appeals of Tennessee, Knoxville

November 17, 2014

In re AUSTIN A., et al.

Assigned on Briefs October 13, 2014

Appeal from the Juvenile Court for Washington County No. J14271, J14272 Robert D. Arnold, Judge

C. Brad Sproles, Kingsport, Tennessee, for the appellant, Amanda P.

Robert E. Cooper, Jr., Attorney General and Reporter, and Alexander S. Rieger, Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Children's Services.

Michelle Caggiano, Elizabethton, Tennessee, Guardian ad Litem.

John W. McClarty, J., delivered the opinion of the Court, in which Charles D. Susano, Jr., C.J., and Thomas R. Frierson, II, J., joined.

OPINION

JOHN W. McCLARTY, JUDGE

I. BACKGROUND

The children in this appeal – Austin Matthew A. (d.o.b. 7/20/2010) ("Matthew")[1] and Xander Kain A. (d.o.b. 10/8/2012) ("the Children") – were brought into state custody on May 15, 2013. Matthew's father is Scott A., whose parental rights were terminated in an earlier proceeding. Xander's father is Andrew A., who surrendered his parental rights. On the date the Children came into custody, the police arrested Amanda P. ("Mother") and Andrew A. for aggravated child abuse of Matthew. The following day, the Department of Children's Services ("DCS") filed a petition to adjudicate dependency and neglect. On August 8 and September 26, 2013, DCS filed petitions to terminate Mother's parental rights to the Children. The trial court determined that the Children were dependent and neglected and that Mother severely abused Matthew. A no-contact order prohibiting contact between Mother and the Children was entered by the court.[2]

The trial was conducted on March 13, 2014. Jennifer Smith, the Children's DCS Family Service Worker, described the abuse suffered by Matthew:

His face was severely . . . swollen . . . In the photographs he could not open his eyes. He had bruises all over him in different [stages of healing], so it appeared they may not have been from that initial incident. . . . Bruising, really bad, discolored.

She related that Matthew was in the hospital "between five and seven days." Ms. Smith noted that Mother has pending criminal charges stemming from the abuse allegations. According to Ms. Smith, Mother has not paid any child support for the ten months the Children have been in foster care, and she is "not aware of any" changes Mother has made in her conduct or circumstance that would make it safe for the Children to be returned to her care.

Ms. Smith testified that the Children were in a pre-adoptive home and doing well. She noted the Children had bonded to their foster parents and that the couple desired to adopt them. Ms. Smith acknowledged that Mother was in contact with DCS and brought gifts for the Children on Christmas, Halloween, and their birthdays. She observed: "I mean I believe that she loves her children . . . and that's showing. She wants to know how they are doing, wants to give them gifts, but at the same time, she didn't protect her children, in my eyes."

Robin C. ("Foster Mother") testified that the Children had been placed with her for nine months and "[t]hey are doing wonderful" in her home. When Matthew first came into her care, Foster Mother recalled that "he was thin, really thin . . . he would hide food, and we would find it days later, you know. I'd find it in a closet or under his pillow or under his bed." His issues with food hoarding have been resolved. She notes that Matthew is in speech and occupational therapy and "is talking really well." Foster Mother noted that the Children are particularly bonded to her and that Xander in particular gets very upset when she leaves. She expressed concern that Matthew would regress if removed from her home. Foster Mother told the court that she and her husband love the Children and hope to adopt them.

Mother testified that she is now living with her fiancé and his 2-year-old son.[3] She is working for 30-35 hours a week at Sammons Restaurant in Elizabethton, Tennessee, making $7.25 an hour. She stated that she was scheduled to take a parenting class at Agape after the conclusion of the trial. Mother related that she had been prescribed Klonopin for anxiety and depression and had been seeing a therapist at Watauga. According to Mother, she contacted Ms. Smith at DCS weekly by phone.

In describing her life prior to the abuse incident, Mother told of taking the Children to the park and reading to them. She related no notice of any danger in leaving the Children with Andrew A. – he was watching them because she was working long hours as the only source of income for the household. She admitted that she was still facing criminal charges for the abuse. She further acknowledged regular contact with and residing next door to her stepfather, a registered sex offender who had sexually abused her when she was fifteen. She also admitted to permitting the Children to visit with her mother and stepfather regularly.

On April 24, 2014, the trial court terminated Mother's parental rights to the Children. The trial court made the following conclusions of law:

Pursuant to T.C.A. 36-1-113(g)(4), there is clear and convincing evidence that [Mother] perpetrated severe child abuse against the minor child, Matthew A[.], the same being stipulated to by all parties as a finding in a final order of this Honorable Court, which was not appealed, and thus res judicata.
Pursuant to T.C.A. 36-1-113(g)(4), there is clear and convincing evidence that Xander A[.] is the half-sibling of the minor child, Matthew, and that Xander was residing permanently in the home when the incident of severe abuse took place.

On the best interest ground, the court made the following findings of fact:

It is in the [C]hildren's best interest for termination to be granted as to [Mother], because she has not made changes in her conduct or circumstances that would make it safe for the [C]hild[ren] to go home. The Court finds that [Mother] was arrested in conjunction with the injuries which gave rise to the removal of the [C]hildren. The Court finds that, according to the testimony of [Mother], she is currently living with her fiancé, . . . with whom she has been engaged for two (2) months. They have lived in this home for six (6) months. She is not listed on the lease to this home. This home is a two (2) bedroom residence. One bedroom belongs to [Mother] and [fiancé], while the other belongs to [fiancé]'s son, who often stays with them. The Court finds that there is not sufficient room for these minor [C]hildren in [Mother]'s current residence.
The Court finds that, based upon the testimony of [Mother], she is presently working at Sammon's Restaurant in Elizabethton, Tennessee. She works approximately thirty (30) hours per week and makes seven dollars and twenty-five cents ($7.25) per hour at this job. Both [Mother] and [fiancé]'s employment and work schedule is such that they would be unable to care for the minor [C]hildren in the home without additional childcare and babysitting assistance. [Mother] further testified that, were the [C]hildren returned to her care, her brother and his paramour would assist her with childcare. The Court finds that DCS has previously conducted a home study of the aforementioned relative's home, which was made an exhibit in this cause. This home study identified numerous concerns for the safety of the [C]hildren in this home. The primary concern with the home was the close relationship between this relative and [Mother]'s stepfather, who is a registered sex offender. The Court also finds that, based upon her testimony, [Mother] has chosen to reside next door to her stepfather, who is a registered sex offender[] . . . and has contact with him three (3) to four (4) times per week in violation of the law. Despite her history with her stepfather, [Mother] views her stepfather to be her friend. The Court finds that, after she was released from incarceration, [Mother] chose to live with her stepfather and mother for approximately four (4) months. This is in spite of the fact that she was a victim of sexual abuse by her stepfather, was removed from the care of her stepfather and mother at age fifteen (15). .
The Court finds that, based upon [Mother]'s testimony, after she was released from jail seven (7) months ago, she began seeing a psychiatrist, where she was diagnosed with anxiety and depression. She is currently prescribed klonopin to treat these conditions.
The Court finds that the circumstances that led to the removal of the [C]hildren from the home of [Mother] have not been remedied. [Mother] testified that she has not completed any form of rehabilitative services or tasks to address the issues of dependence and neglect or severe child abuse in her home. Additionally, the Court finds that [Mother] has yet to make adjustments to her conduct or circumstances to make it safe for the [C]hildren to go home. In the seven (7) months since her release from jail on bond, she has not completed any form of parenting skills training. She has not completed any kind of parenting assessment. She has not completed any form of anger management or domestic violence training. She still has outstanding legal charges that have not been addressed.
Based upon the testimony of the [C]hildren's DCS case manager, Jennifer Smith, the Court finds that the Department remains unable to recommend ...

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