Assigned on Briefs February 23, 2015
Appeal from the Juvenile Court for Sullivan County No. J39837 Daniel G. Boyd, Judge
Jim R. Williams, Kingsport, Tennessee, for the appellant, Kristen M.C.
Herbert H. Slatery, III, Attorney General and Reporter, and Rebekah A. Baker, Senior Counsel for the appellee, State of Tennessee Department of Children's Services.
D. Michael Swiney, J., delivered the opinion of the Court, in which John W. McClarty and Thomas R. Frierson, II, JJ., joined.
D. MICHAEL SWINEY, JUDGE
The Child was born in July of 2010, was taken into State custody on August 25, 2010, and has remained in State custody since that time. By order entered March 23, 2012 the Juvenile Court found the Child to be dependent and neglected and severely abused and relieved DCS from making reasonable efforts to reunify the Child with her parents. Specifically, the Child was found to have suffered injuries including bilateral skull fractures, acute subdural hemorrhage, and hemorrhages to all four levels of her eye.
In May of 2012 DCS filed a petition seeking to terminate the parental rights of both Mother and the Child's father, J.R.G., based upon allegations of severe abuse. That action proceeded to trial in February of 2013 in the Law Court of Sullivan County ("Law Court"). After trial the Law Court entered its final order on April 8, 2013 dismissing the petition to terminate Mother's parental rights after finding and holding, inter alia, that J.R.G. had severely abused the Child but that Mother had not severely abused the Child "as defined by statute either by knowingly exposing the child to or failing to protect the child from severe abuse either by her drug use or by physical injury." The April 8, 2013 order further held that DCS "is making reasonable efforts towards a permanent and appropriate goal so that the child is not in foster care unnecessarily, " lifted the restraining order prohibiting Mother from having contact with the Child, and ordered that Mother was allowed supervised visitation with the Child.
In November of 2013 DCS filed the Petition seeking to terminate Mother's parental rights to the Child for substantial noncompliance with the parenting plan pursuant to Tenn. Code Ann. § 36-1-113(g)(2) and for persistent conditions pursuant to Tenn. Code Ann. § 36-1-113(g)(3). The case proceeded to trial in June of 2014.
At trial Jeff Street the owner of Tri-Cities Diagnostics testified as an expert in the field of drug screens. Mr. Street administered several drug tests to Mother during 2013 and 2014. Mr. Street has a pharmacy degree from the University of Tennessee and had been working in his current business for approximately four and a half years at the time of trial. Mr. Street specializes in drug, alcohol, and DNA testing.
Mr. Street explained that he collects samples for testing and that Ken Potter from his office also collects samples. When asked what happens after the samples are collected, Mr. Street stated:
The sample - - sometimes we do urine, you know, urine samples. Those are tested right there, but the hair or nail samples, after we collect it, everything's sealed up. You know, a chain of custody is provided, and then it's sent on to the lab that I partner with, which is United States Drug Testing Laboratory in Des Plains, Illinois.
Mr. Street administered a urine drug test of Mother on March 25, 2013. He testified that he collected the sample and tested it immediately and that Mother tested positive for cocaine. Mr. Street explained: "[U]rine screens generally give you a detection window, about three to five days, for some drugs up to three to four weeks. A hair follicle is a little bit different because it gives you a detection period of - - goes back 90 days." Mr. Street explained:
Well, head hair - - I mean that's on an average. That 90 days comes from - -the average hair growth is about a half inch per month, and like on someone with long hair like [Mother], only the first inch and a half of the hair is actually used for testing. The rest of it is discarded. The inch and a half is closest to the scalp. So that's where that 90-day - - you know, that's an average. Some people's hair may grow a little bit faster, a little bit slower than others.
Mr. Street agreed that the results of the urine test done on March 25, 2013 would indicate that Mother had cocaine in her system sometime in the week prior to the test.
Mr. Street also did a hair follicle test on Mother on that same day, March 25, 2013, which was positive for cocaine and hydrocodone. Mr. Street explained that this test
was also positive for a benzoylecgonine. That - - when cocaine enters the body, it's broken down into what they call metabolites, and those are also tested for just to give further proof that the drug, you know, was used. And this one also was positive for benzoylecgonine. . . . [W]hen the testing is done for cocaine, it also tests for metabolites, and, again, that just gives further proof that the drug was used. . . . It just indicates the drug was used and the body is breaking - - you know, has broke it down into a metabolite, which is what, you know, your body does to get rid of the drug.
Mr. Street administered a hair follicle test on Mother on August 20, 2013, which was positive for cocaine and two metabolites, benzoylecgonine and norcaine. When asked why the previous test did not show norcaine, Mr. Street stated: "[p]robably just wasn't enough to get above the cutoff level" because the test measures so many parts per million. Mr. Street was asked what quantitation means, and he stated: "when a hair sample was positive, that quantitation means that it was above the cutoff level. We can interpret how much or how little the drug was used, but it just means it was above the cutoff level, and so that means it was positive for that hair sample."
Mr. Street administered a hair follicle test on Mother on February 27, 2014, which was positive for cocaine, hydrocodone, and the metabolite benzoylecgonine. Mr. Street administered a hair follicle test on Mother on June 2, 2014, which was negative for all substances.
Mr. Street was asked if there was any way to show positive for cocaine other than somehow ingesting it or putting it into one's body, and he stated:
No. There's not. And, you know, when these samples are tested for in the lab, it goes like under an initial screening to see if it's positive for anything, and then if it is positive for anything, it goes under more intensive screening to rule out any false positives. These drugs and molecules are matched up, you know, like molecule for molecule. So there's no chance of a false positive.
Mr. Street testified that "sometimes you do get false positives on urine screens, " but that the hair screens were "100 percent accurate." He explained:
Generally, [the hair sample is] taken from the back of the, the back of the head. The hair is, the hair is, you know, lifted up, and I just take about four or five little, small samples. You have to get - - it's not just one hair that's tested. It's like 150 to 200 hairs we need to test. . . . We have a hair collection envelope, sealed twice, and the person who we collect it from initials that, you know, to --just initial it just confirming that is her hair in that envelope. Then it's put in a sample bag, sealed up for the third time. Along in that sample bag there's a - -the top part of that chain of custody is put in there. Everything has got bar codes on it.
Mr. Street testified that he does not take hair from the same area for subsequent tests. Rather, he stated: "It's random, yes."
Mother testified that she was taking Subutex before the Child was born and that she continued to take Subutex during the pregnancy. Mother stated that she was on Subutex for the first few years of the Child's life, then was off of it for about a year, and at the time of trial again was on Subutex. Mother stated she "had to wean myself off [the Subutex] because DCS had told me that it was mind altering."
Mother admitted that she used cocaine before she became pregnant with the Child and that she had a history of illegal drug use since 2004. Mother admitted that approximately twelve months prior to trial she had a relapse and used cocaine. In November of 2013 Mother was given two drug tests and she tested positive both times for cocaine. Mother denied that she had used cocaine at that time.
Mother was asked about the hair follicle drug test in August of 2013, which was positive for cocaine. Mother disputed the test results and requested another test, but her request was denied. Mother also disputed the results of the hair follicle drug test done in February of 2014 and the one done in March of 2013, both of which were positive for cocaine.
Mother was asked what prescription medications she takes, and she stated:
I take Zofran. I take Protonics for stomach ulcers. I take - - it's A-m-p-h-i-d-i-n-e, and that is for blood pressure, for low blood pressure. I don't know - -they had just given it to me at the clinic and the Subutex, and I also was prescribed Lyrica for neuropathy. . . . Oh, and I take Cymbalta.
Mother was asked about an assessment that was done which stated that Mother had a high level of awareness of her substance abuse problem. Mother was asked if this statement was accurate, and she stated: "I'm aware of it, yes." Mother admitted that she was aware of her substance abuse problem when she had her relapse. When asked if she knew that by having a relapse she was jeopardizing her relationship with the Child, Mother stated: "I didn't think of that at the moment, but I did realize that very quickly and - - I was not happy with myself, and that's exactly why I never - - I mean I've just chose not to touch it ever again."
Mother testified that her relapse occurred in October of 2013. Mother testified that she did not purchase the cocaine at that time and it was not brought to her house. Rather, Mother stated that she went to a friend's house where she did the cocaine. When asked, Mother testified that the friend was named Jennifer, but Mother stated that she did not know Jennifer's last name or address, only that Jennifer "lives over off of Sullivan Street." The Petition was filed approximately one month after Mother's admitted relapse. Mother was asked why she continued to use cocaine, and she stated:
I honestly - - the reason why I did it, I was at, you know, someone's house. It was there. I didn't think that it was even - - you know, I was - - I didn't even think it was going to be there, and I - - you know, I wasn't strong enough I guess at that time to - - you know, but I'm . . . I am very, I am very sorry for what I've done in my past. I am not perfect by no means. I am not perfect. But I know one thing - that I have tried so hard, and I have done everything that they have asked me, and this past eight months I have been clean. I have done nothing wrong, and I have done nothing wrong to a point where I cannot take care of my child. Yes, I have relapsed. Yes, I have a disease, but it does not mean I don't love my child and I don't make sure that she is safe. Actually, they have told me that I am too safe with her and I am too clean with her.
When questioned further Mother admitted that she did not dispute the hair follicle tests performed by Mr. Street which were positive for cocaine. She stated:
That there was cocaine in my hair. I can't attest to that because I don't know how long it stays in your hair or anything like that. So if it was, you know, I don't know exactly how it works. So if - - I mean I can't really dispute that, but I can dispute my urine coming out of me because I know what's coming in my body.
Mother was asked to explain why she had had some positive drug screens, and she stated:
I've relapsed. I've messed up a couple times. It's nothing I'm proud of. It's nothing that, you know, is acceptable in somebody that's trying to get their child back but, you know, I'm doing the right thing and trying very hard to make everybody see that the most important thing to me is my daughter.
Mother testified that she does not associate with anyone who does drugs. When asked about her earlier testimony about going to a friend's house to do cocaine, Mother stated: "I don't associate with anybody now that . . . . When I relapsed I ran into a person and I ended up doing it. . . . No, and I . . . really didn't then. I just ran into them. . . . I don't now and I didn't before but I just ran into somebody that had been a prior friend." Mother was asked how she defines associating, and she stated:
Because it was not other people. It wasn't like it was a big party, it was one person. . . . There was one person. . . . It was a person that had the drugs through somebody that I knew previously. It wasn't a whole bunch of people there. It was through an acquaintance that I had known before of how I knew that person. You asked me how I knew that person.
After further questioning, Mother admitted that the positive result of the drug test done in August of 2013 was correct. Mother then was asked who she did cocaine with in August of 2013 and if it was the same person she had testified about earlier, and she stated: "No, yeah, I guess . . . I don't even remember, I really don't that was a year ago."
Mother testified that she relapsed in August and October of 2013, but she denied doing drugs in February of 2014. Mother admitted that the Petition was filed in November of 2013 and that she herself had testified about how long the case had been going on, but that she continued to use cocaine. She stated: "I'm not proud of it by no means." Mother was asked if it was in the Child's best interest that Mother continued to use cocaine, and she stated: "Not that I did, and I'm not happy about it, not at all."
Elizabeth Hayward, the clinical director and chief assessor from Foundations for Life Principles, testified that she did a parenting assessment on Mother. Ms. Hayward worked with Mother to assist Mother to develop a parenting bond with the Child rather than the friendship bond that Ms. Hayward noted during the parenting assessment.
Ms. Hayward testified:
[The Child] lights up when she sees the foster mom. She runs to her. She goes to her for things. The difference is just she acts as though that's a mommy figure, and it makes sense. She lives in that home. She has lived in that home since she was five weeks old. She's almost four, and that's what me and [Mother] have talked about, and [Mother] has cried, and I probably teared [sic] up a little bit with her because at this point, the time is going to be a factor. And I've told her that every time that we've started to go to court, and she's tearing up now, and I hate it. It breaks my heart. But time, it's gone. Time has flown. This child is old enough that she knows and feels, "These are my parents. These are my brothers and sisters. This is my dog." She talks about it. She talks about Ga-Ga every visit. She talked about her dog. This is her life. Her life is very clearly established. . . . [J]ust speaking, you know, as a mental health professional, you know, the counselor side - - I hate to say it, but I honestly feel that when I've looked into this type of stuff, when I've seen it happen, it's incredibly traumatic if she were to be taken out of her home. This is just what she knows. An example is a 16-month old. The 16-month old came into a family's home as a infant and left at 16-months old back to her mother, been with her, and she's now seven. She still has contact with her foster family, sees them, and every time still cries when she leaves. She was 16-months old. [The Child's] four. The bonds are very strong.
Ms. Hayward was asked what type of effect being removed from the foster home after all this time might have on a child, and she stated:
The things that you would be looking at is oppositional defiance, acting out horrendously. The trauma factor, horrendous PTSD. I mean it's literally - -it's the same as any of us, you know. If I was removed from everybody that I've known and loved all my life, even as an adult right now if I was removed, it would be a death. Not a death of one person, a death of your entire life, all you've known. Does it mean that she ...