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In re Kim C.

Court of Appeals of Tennessee, Nashville

March 6, 2015

IN RE KIM C., ET AL.

January 28, 2015 Session.

Appeal from the Juvenile Court for Rutherford County No. TC1716T Donna Scott Davenport, Judge.

Mark J. Downton, Nashville, Tennessee, for the appellant/father, F.C.. Carl Moore, Murfreesboro, Tennessee, for the appellant/mother, J.C..

Mary Byrd Ferrara, Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Children's Services.

Kenny Armstrong, J., delivered the opinion of the Court, in which J. Steven Stafford, P.J., W.S., and Arnold B. Goldin, J., joined.

OPINION

KENNY ARMSTRONG, JUDGE.

I. Background

This case involves three minor children, K.C. (born November 2001), M.C. (born May 2006), and J.C. (born August 2007) (collectively, the "Children"). Mother, J.C., and Father, F.C. (together, "Parents, " or "Appellants") moved to Tennessee in April 2010.[1] The family first came to the attention of the Tennessee Department of Children's Services ("DCS, " or "Appellee") by referral from New York. It was reported that Mother had moved from New York to Tennessee to be with Father, who allegedly had sex offender status. In addition, DCS received a local referral that the Children were not properly clothed, and were not clean. In response to these referrals, DCS conducted a courtesy visit to the home.

On April 14, 2010, DCS received another referral concerning allegations of physical abuse by the Mother against the middle child, M.C.. Specifically, the referring party indicated that Mother had punched the child in the stomach. The next referral was received on August 9, 2010 and involved a claim of lack of supervision. The August 9th referral reported that the Children were outside without adult supervision, and that the youngest child, J.C., was outside crying wearing no diaper while the other children were playing, unsupervised, in a parking lot. DCS received another referral on August 20, 2010. Again, it was reported that the Children lacked supervision and were suffering abuse by Mother. The Children were reportedly screaming and crying as a result of Mother's abuse, which had left marks on the Children's bodies. The referral noted that bruising and swelling were observed on J.C.'s face due to Mother allegedly hitting him for spilling milk. This referral also questioned Mother's mental capacity. On August 30, 2010, DCS received yet another referral, claiming that the Children would come to church filthy, with their clothing stained with urine and fecal matter. The Children were also reported to be hungry. The August 30, 2010 referral also reported that Father had been arrested the weekend before this referral was made.

In August 2010, DCS made contact with the family to begin providing in-home services. The Parents and DCS established a non-custodial plan, and the in-home family support services began on August 31, 2010. DCS made in-home visits on October 6 and 13, 2010. The Parents were resistant to the services offered by DCS.

Through DCS's contract agency, Continuity of Care, Cheryl McAdams, a clinical psychologist, was retained to provide parenting education and training from August 2010 until March 24, 2012. Dr. McAdams first went to the Parents' home on September 13, 2010. When she arrived, Mother was the only person at home. Father arrived shortly thereafter, and he informed Dr. McAdams that the only way he would participate in parenting classes would be if he was instructing the class. He advised Dr. McAdams that she was not welcome in their home, and she left. Dr. McAdams attempted to schedule another in-home meeting but was advised the Parents were not willing to work with her. Dr. McAdams testified that she next saw the Parents at a Child and Family Team Meeting on September 23, 2010. At that meeting, the Parents reluctantly agreed to accept her services. Dr. McAdams arranged to provide parenting education services in the home once per week; however, according to her testimony, she met with much resistance from the Parents, especially Father.

On September 29, 2010, Dr. McAdams visited the home and observed that it was extremely cluttered, "hoarding-like, " with piles of dirty laundry and an overwhelming smell of urine. Dr. McAdams counseled the Parents about washing urine soaked clothing promptly. At that time, Dr. McAdams also observed black mold in both bathroom toilets, indicating that they had not been cleaned for some time. Dr. McAdams returned to the home on October 6, 2010; at that time, the Children were home because they were on fall break from school. The boys were observed being disrespectful to Mother and were running all over the house, not following her direction. Father did not intervene to assist Mother; instead, he became angry and left the house. Dr. McAdams testified that she did observe some improvement with the smell and housekeeping issues between the time of her last in-home visit and her return on September 29th. However, on October 13, 2010, Dr. McAdams returned to the home and found that it was not as clean as it had been during her last visit.

On October 17, 2010, DCS received another referral, claiming that the Children were unsupervised and did not know their Parents' whereabouts. DCS arrived at the family's apartment after dark on October 17th. As DCS arrived, Mother returned home and reported that she had been to church and had left the Children with a neighbor. Father reported that he had been in the back room with J.C.. At the time of this visit, DCS observed that the home was very dirty, smelling of urine, rotten food, and other foul odors. The home was also extremely cluttered. DCS observed molding food on the stove, old food in the living room, an open refrigerator with old and fresh food, food next to clothes and shoes, and a general state of disarray. The Parents were agitated and made inconsistent reports to DCS. The Children were at a neighbor's home, and two of them had no shoes and were being bathed by the neighbor. In light of the circumstances, DCS removed the Children from the home that night. The following day, on October 18, 2010, DCS filed a petition to declare the Children dependent and neglected and requested emergency temporary legal custody, which the trial court granted in favor of DCS.

On October 20, 2010, Dr. McAdams visited the home to help the Parents gather the Children's clothing and items. Shortly thereafter, DCS added additional services to help the Parents with their parenting skills. On November 1, 2010, DCS and the Parents entered into a Family Permanency Plan. The plan outlined actions steps for the Parents, which included:

(I) develop and maintain a budget plan to provide for the Children; (2) present a lease to DCS by February 2, 2011, evidencing appropriate housing that is 1, 000 feet from churches, schools, and daycare centers; (3) maintain a clean household and cooperate with Dr. McAdams to learn new housekeeping skills; (4) develop and demonstrate parenting skills; (5) cooperate with Continuity of Care Services; (6) attend regular visits with the Children; (7) demonstrate skills learned from Continuity of Care and use effective disciplining strategies; (8) demonstrate positive parenting skills; (9) ensure that the Children are clean, appropriately dressed, and provide them with adequate food; (10) complete psychological evaluations with an IQ score by December 31, 2010 and follow all recommendations thereof;
(II) complete anger management sessions; (12) attend the Children's medical appointments to remain updated on their health. In addition to these joint requirements, Father was required to be law abiding and to comply with his sex offender status. At the time the plan was executed, DCS provided the Parents with a copy of the criteria and procedures for termination of parental rights and reviewed the contents of the document with them. The Parents acknowledged receipt of the document by signing it.

In November 2010, the Parents moved into a new home, which was cleaner and less cluttered than the first. Dr. McAdams first met with the Parents at the new home on November 10, 2010. At that time, DCS was supervising their visitations with the Children. On November 13, 2010, Dr. McAdams testified that she attended a parent visitation to observe the Parents' interaction with the Children. On November 18, 2010, Dr. McAdams returned to the home again and counseled the Parents about domestic violence. At that time, Dr. McAdams stated that the Parents admitted that they paid less attention to the older child, K.C., a girl, than they did to the younger boys.

In addition to Dr. McAdams's assistance, beginning in December 2010, the Parents were provided home assistance by Family Service Worker Ebony Pass Lott. Ms. Pass Lott holds a master's degree in social work. Other than a two month period when she was out on maternity leave, Ms. Pass Lott worked continuously with the Parents throughout these proceedings. Social worker Charity Lynch was also assigned to the case. Ms. Lynch testified that she works for Dr. Kaforey, who conducted the Parents' assessments. Mother was assessed on December 10, 2010, at which time she presented with anxiety and depression. However, Mother was found to have above average intelligence and no cognitive deficits. Ms. Lynch recommended that Mother undergo psychiatric evaluation to address depression and anxiety, and that she attend parenting classes. Due to his resistance, Father's assessment was not conducted until February 21, 2012. Ms. Lynch testified that she suspected possible untreated mental health issues such as effective bipolar disorder and recommended Father undergo thorough mental health and psychiatric evaluations.

In January 2011, Ms. Amanda Pruitt, a licensed social worker with the Rutherford County Child Advocacy Center, received a referral by DCS to provide services to the family. Ms. Pruitt testified that she immediately began working with the family, teaching them cleaning and parenting skills. Ms. Pruitt also counseled the Parents about employment applications and places to find jobs. In February 2011, Ms. Pruitt observed that the Children's visits were chaotic, and the Parents had no control or ability to discipline the Children. Ms. Pruitt testified that she observed the Parents in the parking lot with the Children, and they did not demonstrate mastery of the basics of holding the small children's hands to protect them. Ms. Pruitt further testified that she observed no lasting significant improvement in their parenting skills over her multi-year assignment working with this couple.

Dr. McAdams next visited the home on March 7, 2011, but Father did not attend because he did not think he needed help with domestic violence issues. Dr. McAdams met with Mother again on March 15, 2011 to discuss her progress. On March 25, 2011, Dr. McAdams observed Mother's visitation with the Children, and noted that Mother had made some progress. On April 8, 2011, Dr. McAdams attended a Child and Family Team Meeting, which she testified was interrupted by Father's refusal to cooperate. On or about April 8, 2011, a second Family Permanency Plan was developed and agreed to by the Parents. This plan required essentially the same action steps as the initial plan, but added an additional condition for Mother to be compliant with individual therapeutic services focusing on trauma and abuse. In addition, Father was not to be alone with the Children and was to participate in therapeutic visitation with them. Father was also required to complete domestic violence classes, and complete a follow-up interview to address possible untruths reported in his assessment. Both parents acknowledged receipt of this second plan, and both also received a second copy of the criteria for termination of parental rights. On April 9, 2011, Dr. McAdams supervised a therapeutic visitation session, focusing on parenting and the Parents' interaction with the Children. On April 20, 2011, Dr. McAdams met with the Parents to discuss the pros and cons of the therapeutic visitation, as well as Mother's new pregnancy. On April 23, 2011, Dr. McAdams attended another visitation. She testified that when she arrived for the visitation, Mother was not ready for the Children. At that visit, Dr. McAdams testified that the Parents allowed the Children to play outside while the yard was being mowed until Dr. McAdams instructed the Parents to bring the Children inside.

On April 26, 2011, the trial court heard DCS's dependency and neglect petition in this case. Both Parents attended the hearing, and both were represented by counsel. By adjudicatory order entered August 23, 2011, the trial court found the Children to be dependent and neglected based upon its finding that the Children were subjected to a "lack of proper supervision and . . . environmental neglect." The trial court entered a clarification and dispositional order on August 31, 2011, wherein it ordered that the Children would remain in DCS custody.

Dr. McAdams next met with the Parents on May 27, 2011, at which time they discussed the upcoming birth of their baby, healthy eating habits, and M.C.'s upcoming birthday. Dr. McAdams also discussed disability benefits with Mother. At that visit, Father reported that he had been receiving counseling at the Veteran's Administration Hospital ("VA") and did not need any more treatment. Dr. McAdams asked Father to provide a medical release for the VA records, and this release was not provided in a timely manner.

On June 4, 2011, Dr. McAdams met with the Parents for another therapeutic visitation. It was M.C.'s birthday, and the parents kept arguing in front of the Children. Dr. McAdams met with the Parents again on June 24, 2011, and advised them that the Children were not likely to be returned to the home before the birth of the new baby. The next visit was scheduled for July 21, 2011; at that time, Dr. McAdams observed "black kernels of corn" in the meal that was served to the Children. Dr. McAdams also observed that the Mother sat at a child-toddler table for dinner rather than sitting with the Children.

On October 3, 2011, a third Family Permanency Plan was developed. At this time, the goal of adoption was added to the plan as a result of the Parents' limited progress on completing the required tasks. The Parents' action steps did not change in this plan.

Dr. McAdams visited the Parents again on November 18th, 26th, and 29th, 2011. In February 2012, the Parents petitioned the court for unsupervised visitation. Dr. McAdams opposed the unsupervised visitation requested by the Parents, and the petition was ultimately denied. On February 18, 2012, Dr. McAdams conducted a visitation and observed the Children playing outside, riding scooters while not wearing helmets. Dr. McAdams advised them to wear their helmets, but Father told them that they did not need them.

In March 2012, Dr. McAdams attended a foster review and last saw the Parents on March 24, 2012. On March 24, Father wanted to take the Children outside, but since it was raining, Dr. McAdams would not agree to that request. According to Dr. McAdams, Father was especially argumentative that day. Mother prepared lunch for the Children the day of this visit. The lunch consisted of chocolate milk, strawberries with sugar, sherbet, and ice cream cones. A salad was also served, but there was an argument between the Parents concerning whether cucumber should be added. During this visit at the Parents' home, Dr. McAdams noticed red welts on her arms, which began to itch. Dr. McAdams testified that she never returned again due to the lack of sanitary conditions in the home.

On April 13, 2012, Dr. McAdams attended a Child Family Team Meeting. The fourth Family Permanency Plan was developed at this meeting. In addition, Dr. McAdams was removed from the case and a different provider was placed with the family. At the trial, Dr. McAdams testified that during the time she spent with the family, the new home environment deteriorated, and hoarding behavior increased. Dr. McAdams characterized the overall picture as a "lack of progress" and/or "refusal of Mother and Father to change." She opined that the Children would be at risk if left with the Parents for even a two-hour, unsupervised visit. Dr. McAdams believed that the only reason the Children were unharmed during the Parents' visitations was because a DCS worker was always present for those visits. She further stated that, since being removed from the Parents' home, the Children had formed a bond with their foster parents and had made improvements in their behavior.

After Dr. McAdams' departure, the Parents continued to receive in-home and personal assistance from Amanda Pruitt, who had worked to provide intense in-home services for the family since January 2011. Throughout her assignment, Ms. Pruitt continued to observe hygiene problems with Mother (i.e., body odor, dirty hair and lice, underclothes exposed in public). Ms. Pruitt testified that she worked through a bed bug infestation with the family in July 2012. She also testified that during her time with the family, she observed such things as expired milk being served to the Children, furniture and electronics hoarding both inside and outside the house, and numerous other environmental concerns in the home. In addition, Ms. Pruitt observed Father's controlling, argumentative, and aggressive behaviors throughout her assignment. For example, rather than accepting her help to eradicate the bed bug infestation, Father's solution was to throw the furniture into the yard. Ms. Pruitt testified that, at no time, was she comfortable with unsupervised visitation by the Parents because they never met their goals and did not provide sufficient supervision and attention to the Children.

Ms. Pass Lott, the Family Service worker, testified that Father never received the mental health treatment that was recommended by Ms. Lynch's assessment. After repeated requests, Father finally brought his VA records to Ms. Pass Lott. The records revealed that Father suffered from panic attacks, anxiety, personality changes, hallucinations, and mild bipolar-manic disorder. Although Father acknowledged these were his diagnoses, he disputed that he actually had these conditions. Father further acknowledged his doctors' recommendations of therapy and prescription psychotropic medication, but refused both the therapy and the prescription medications. Father did complete several requested anger management and parenting classes. Likewise, Mother received outside counseling until her insurance benefits ran out. Thereafter, DCS continued to provide her with in-home counseling without charge, and offered to provide her with outside counseling at Centerstone. Mother, however, refused to go to Centerstone due to alleged conflicts with her school schedule and transportation issues.

The record shows that Father did not attend any medical or dental appointments with the Children during the two years prior to the termination hearing. Likewise, Mother did not attend any of the Children's appointments in the year leading up to the termination hearing. Since their removal from the Parents' home, the Children have remained together in a pre-adoptive foster home. Although not at issue in this appeal, we note that the Children's youngest sibling, who was born after the Children came into protective custody, has also been placed in the foster home with the Children.

After working with the Parents for two years, on May 11, 2012, DCS filed a petition to terminate their parental rights. DCS asserted the same grounds for both Parents, namely: (1) abandonment by failure to provide a suitable home; (2) substantial noncompliance with the permanency plans; and (3) persistence of the conditions that necessitated removal of the Children from Parents' home. A fifth and final permanency plan was developed and ratified on September 24, 2012. The Parents' respective responsibilities under the revised plans did not substantially change throughout these proceedings.

The hearing on the petition to terminate parental rights took place over thirteen days, from December 5, 2012 through November 5, 2013. On January 2, 2014, the trial court entered an order, terminating the Parents' rights on the grounds asserted by DCS in its petition. Father filed a notice of appeal on January 22, 2014; Mother filed a notice of appeal on January 29, 2014. Thereafter, the Appellants filed a joint motion in this Court for the case to be remanded to the trial court for the limited purpose of supplementing the final order to include specific findings of fact sufficient to satisfy Tennessee Code Annotated Section §36-1-113(k). By order of July 1, 2014, this Court granted the motion, and the case was remanded to the trial court. Pursuant to our order, the trial court filed a supplemental technical record on November 17, 2014, containing its amended order terminating parental rights, which was entered in the trial court on October 29, 2014.

II. Issues

We note that Mother and Father are represented by different lawyers in this appeal, and both have filed separate appellate briefs. However, the issues raised in their respective briefs are essentially ...


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