Session Date October 28, 2014
Appeal from the Circuit Court for Blount County No. E-24985 Tammy M. Harrington, Judge
Sherif Guindi, Knoxville, Tennessee, for the appellant, Kimberly M.
Robert E. Cooper, Jr., Attorney General and Reporter, and Ryan L. McGehee, Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Children's Services.
Wade Jenkins, Knoxville, Tennessee, Guardian ad Litem.
John W. McClarty, J., delivered the opinion of the Court, in which D. Michael Swiney and Thomas R. Frierson, II, JJ., joined.
JOHN W. McCLARTY, JUDGE
Shaneeque R.M.M. ("the Child") was born on February 21, 2013. She entered the custody of the Department of Children's Services ("DCS") on February 28, 2013, seven days after her birth. DCS has an extensive history of involvement with the Child's mother, Kimberly M. ("Mother"), who has had her parental rights to four other minor children terminated. In Re Zacharias T.M., et al., 403 S.W.3d 212 (Tenn. Ct. App. 2012). Two other children were placed with an out-of-state relative.
The Child at issue in this appeal was removed from Mother's custody due to environmental concerns, lack of a car seat, and lack of a crib. In April 2013, following a parole violation, Mother was incarcerated. On April 25, 2013, DCS filed a petition to terminate Mother's parental rights. It was stipulated by the parties that Mother was incarcerated from April 5 to April 24, 2013.
The trial in this matter was held on January 27, 2014. Mother acknowledged that she has given birth to seven children and indicated that she was again pregnant. She named Reginald J. R. ("Father") as the Child's father and indicated he is also the father of any child or children resulting from her current pregnancy. Previously, Mother misidentified the Child's father as "Reggie Robinson." According to Mother, that was the name Father gave her, he is a big man, and she had no right to question him or to ask to see his license. Father voluntarily surrendered his parental rights to the Child on April 4, 2013, and is not a party to this appeal. Initially, Mother would not acknowledge whether Father used illegal drugs, but then admitted he had used illegal drugs in her presence. She denied currently using illegal drugs, but admitted using such drugs in the past. She acknowledged using cocaine before she became pregnant with the Child. However, she tested positive for cocaine in a hair follicle collected in December 2013.
In addition to the April 2013 arrest for a probation violation,  Mother noted that she was again incarcerated in August 2013. According to Mother, she had previously plead guilty to attempted child abuse. and for driving under the influence in 2011.
Mother testified that she has anxiety, nerve problems, and a number of physical ailments and receives a disability check for physical and mental issues. Although prescribed Depakote for depression in 2008, Mother did not refill the prescription, indicating she does not feel she has any psychological problems. In 2011, Mother was involuntarily admitted to Lakeshore Hospital. DCS requested that Mother have a psychological examination, but she did not complete it prior to the trial. She claimed to have two psychological exams scheduled for after the trial.
The home Mother resides in is owned by her stepfather, Allen B. ("Stepfather"). According to Mother, in the past, Stepfather has assaulted her five times, including "two attempts to kill." She further indicated Stepfather has subjected her to physical and sexual abuse, dating back to 1987. Mother claimed Stepfather makes threats regarding black people and racially charged comments about the Child, who is biracial. She had Stepfather served with an order of protection, but at the time of trial, he apparently still lived with Mother in the house. Based on the most recent order of protection of record, Mother was authorized to retrieve her belongings from the home, rather than live there. Mother, however, claimed that the order had been amended before the trial to allow her to stay in the house.
At the time the Child was born, Mother had no car seat or crib, and planned for the Child to sleep on a "normal" mattress on a waterbed frame. She acknowledged that presently her home was not safe enough for the Child, but claimed she was in the process of making it safer. Mother admitted that her living conditions have been a concern for DCS over the years.
In her trial testimony, Mother claimed that she planned to obtain employment, but also stated she did not have the ability to work. Her sole income is the disability check. After deductions and garnishments for child support and court fees, Mother is left with $326 per month. Mother asserted this amount is sufficient income for her to provide a home and for the Child's needs, but then testified to $400 in monthly expenses.
Despite acknowledging she did not visit the Child for a four and a half month period from the time the Child was removed until July 2013, Mother asserted she has a bond with the Child. She admitted that she had spent a total of 24 hours with the Child since the infant's removal.
Laura Hamilton, a DCS case manager, testified that she had visited Mother's residence. Ms. Hamilton noted that just weeks before the trial, the home was cluttered with piles of clothes, some of which were piled on top of space heaters. She described a pathway to walk inside the home and observed that she could see only 25% of the floor due to the clutter. Additionally, she noted there was a wood-burning fireplace without a safety gate, cabinets without doors, and outlets without covers. She further noted the roof appeared ready to cave in. After subsequent follow up visits, Ms. Hamilton opined that there has been no change in conditions in the home other than Mother obtaining a smoke detector. As recently as the Friday before the trial, Ms. Hamilton determined Mother had made no improvements.
In her testimony at trial, Ms. Hamilton related that Mother spent a total of eight hours with the Child since October 1, 2013. Mother had one visit in October, two visits in November, zero in December, and one in January. Ms. Hamilton admitted there would have been an additional visit but for an illness the Child was experiencing. With the exception of a visit in January, the Child cried throughout each of the visits. According to Ms. Hamilton, the Child has bonded with her foster parents and is a happy child. A sibling is in the same foster home with her; three of her other siblings have been adopted by the mother of the Child's current foster mother.
Ms. Hamilton reported that DCS offered services to Mother, including parenting classes in the home and a psychological exam. Mother subsequently missed two scheduled appointments for the psychological exam. She started the parenting classes just prior to trial. According to DCS, difficulty was had keeping in contact with Mother as she had moved and changed her phone number.
Jessie McCoy, a case manager employed by Smokey Mountain Children's Home, was assigned to the Child's case in March 2013. Ms. McCoy noted that she became aware of Mother through experiences with the other children in state custody. She observed that Mother's current behavior is consistent with her prior actions with her older children. Ms. McCoy noted that during visitation, the Child stayed upset and did not seem to know Mother.
Delsa Spence, a DCS case manager, related that she visited the home and spoke with Stepfather. He indicated on one occasion that Mother did not live there, but admitted on another occasion that she did reside there. According to Ms. Spence, Mother initially had regular visitation with the Child. However, between visits with the Child on April 2, 2013, and September 11, 2013, Mother disappeared and provided no explanation for her absence.Ms. Spence observed that the Child has bonded with the foster family and they desire to adopt the Child. Mother informed Ms. Spence that she would get a mental health assessment but never provided any documentation.
On April 17, 2014, the trial court terminated the parental rights of Mother on the grounds of wanton disregard and mental incompetence. The court further found that termination of Mother's parental rights was in the best interest of the Child. The trial court observed, inter alia, the following:
THE COURT: . . . The respondent was in jail part or all of four months just before this petition was filed. There was a stipulation that [Mother] was incarcerated from April the 5th, 2013, to April 24th, 2013. This petition was filed April the 25th.
As stated for number two, before going to jail she was engaged in conduct that exhibits a wanton disregard for the [C]hild's welfare.
. . . DCS involvement started in large part due to her previous termination --involuntary termination of four children and then her bringing the [C]hild home . . . . [S]he did not have a crib for the [C]hild. . . . [T]he [C]hild was sleeping on a waterbed with a mattress for a regular bed and that there were spaces. [Mother] said it was an inch; the other testimony was larger than that, but that it was not appropriate. There were clothes piled on the bed, et cetera, and that was one of the main triggering events that brought the [C]hild into custody.
So that happened before her incarceration. She brought the [C]hild home to this residence on Clover Hill where she resides with [Stepfather]. And I do find that what has happened in relation to [Stepfather] and the Order of Protection and the facts contained therein . . . are relevant because a great deal of the information or a lot of the information that was in that petition predates the birth of th[e C]hild and were conditions that were in place that she knew about before she brought th[e C]hild home. Further, that the residence was not -- not only was her fellow occupant not appropriate but the home was not in an appropriate condition.
. . . [P]rior to her incarceration she testified that at the time this action was initiated she did not know -- or that [Father] had given her the [false] name, that she did not know him, or that she did not have his full legal name, and she explained why she didn't. I understand what she said, but that she remained with him, stating that the last time he ...