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In re K.G.S.

Court of Appeals of Tennessee, Knoxville

May 19, 2015

In re K.G.S.

Assigned on Briefs January 16, 2015

Appeal from the Juvenile Court for Sevier County No. 14-000175 Dwight E. Stokes, Judge

This is a termination of parental rights case focusing on K.G.S. (the Child), the minor daughter of K.G.S. (Mother).[1] The Department of Children's Services (DCS) took emergency custody of the Child based on allegations of sexual abuse and lack of supervision. The trial court adjudicated the Child dependent and neglected. Both parents conceded the factual basis for this holding. After a trial, the court terminated Mother's parental rights after finding, by clear and convincing evidence, that (1) grounds for termination were established, and (2) termination is in the best interest of the Child. Mother appeals and challenges each of these holdings. We affirm.

Timothy J. Gudmundson, Sevierville, Tennessee, for the appellant mother, K.G.S.

Herbert H. Slatery, III, Attorney General and Reporter, and Rebekah A. Baker, Senior Counsel, Nashville, Tennessee, for the appellee, Tennessee Department of Children's Services.

Charles D. Susano, Jr., C.J., delivered the opinion of the Court, in which D. Michael Swiney and John W. McClarty, JJ., joined.

OPINION

CHARLES D. SUSANO, JR., CHIEF JUDGE

I.

In January 2012, Mother, then age seventeen, gave birth to the Child. After the Child's birth, Mother returned to the home of L.S. (Grandfather) and Z.S. (Grandmother), the Child's maternal grandparents (collectively, Grandparents). On November 30, 2012, DCS became aware of allegations that the Child had been sexually abused and was in need of supervision. On the same day, DCS conducted separate interviews of the parents. Mother reported that just before midnight on November 27, Father came to her home. When she opened her window to tell him to leave, he entered her bedroom, held her at "knifepoint" with a box cutter, and forced her to engage in sexual intercourse. The Child was nearby on a pile of dirty clothes. Mother stated that, on the same date, Father digitally penetrated the Child while changing her diaper. Mother did not report these two events to law enforcement until two days later. In his interview with DCS, Father admitted only that he was with Mother at her home. He said they had consensual intercourse. The trial court ordered that the Child be placed in the protective custody of DCS; the court stipulated that Father was to have no contact with the Child.

This was not DCS's first involvement with the parents; the department had received referrals regarding truancy issues with the parents in the past. Prior to the current events, a non-custodial permanency plan was in place pursuant to which DCS was making efforts to assist Grandparents in the supervision of Mother.

In December 2012, an initial permanency plan was established for the Child, under which Mother was required to: attend school and complete all homework; work with in-home service providers on parenting skills, education and therapeutic visitation; exercise regular visitation with the Child; follow all recommendations from a parenting assessment and a psychological assessment; obtain and maintain a safe and stable home; obtain and maintain stable, reliable income and submit proof of employment to DCS monthly; and obtain and maintain reliable transportation or submit an alternative transportation plan. As revised in May 2013 and again in August 2013, the requirements remained the same except for the requirement that Mother complete high school. This was removed after she dropped out of school. In March 2013, Mother was ordered to pay child support of $285 per month.

Following an April 3, 2013 hearing, the court adjudicated the Child dependent and neglected as conceded by both parents. In support of its order, the court found that Mother and Father had violated the no-contact order prohibiting Father from being around the Child. Further, the court found that Mother and Father had exchanged photos of the Child's vaginal area for prurient interest. The court determined that such conduct fell within the statutory definition of sexual exploitation of a minor. However, the court did find that the State had failed to prove that Father digitally penetrated the Child, noting that "Mother's testimony has been inconsistent."

On February 14, 2014, DCS filed a petition to terminate Mother's parental rights. Four grounds for termination were alleged: abandonment by failure to support and by failure to provide a suitable home; mental incompetency; and substantial noncompliance with the permanency plan. A hearing on the petition was held on June 5, 2014.

Mother testified to the events prompting the Child's removal. She said she had tried to prevent Father from abusing the Child, but he had "shov[ed] his pinky up [the Child's] bottom." At a later date, she observed Father using her cellphone to take photos of the Child's vaginal area. Because of Father's violence toward Mother, Grandparents "kicked" him out of the house. Mother acknowledged there was a no-contact order prohibiting Father's contact with the Child, but she said Father ignored it. Mother conceded that she began seeing Father again in 2014.

Testimony by the Child's foster care case manager, Lynn Eggers-Bentley, was to the effect that Mother had failed to complete most of her responsibilities under the permanency plan. Since the Child was removed, Mother's circumstances were largely unchanged. At one point, Mother resorted to calling Ms. Bentley to say that she was "sick of all this" and "wanted her daughter back or she would have to take matters into her own hands." The proof generally showed that Mother was very dependent on Grandparents. She had recently obtained a driver's license, but continued to rely on Grandmother for transportation. [2] Grandfather explained that his eyesight was poor. Grandparents attended all DCS visits with Mother and often communicated, on Mother's behalf, with Ms. Bentley regarding the Child. Grandmother testified she received disability benefits for an anxiety disorder and was a self-described "slow learner." Ms. Bentley stated that she found Grandfather was best able to understand and communicate with her regarding the things Mother was required to do in order to regain custody. At the same time, Ms. Bentley stated that she did not consider Grandfather to be a "fit parent."

In November 2013, Mother moved to Florida. Mother testified she went to see a relative. According to Ms. Bentley, however, Mother explained that she moved to be with her boyfriend, K.Y., who went to Florida to live with an aunt after arguing with Grandparents and moving out of their home. Mother testified that while they dated, K.Y. had hit her in the stomach and slammed her against a wall. In January 2014, K.Y. contacted Ms. Bentley and informed her that he and Mother had returned to Tennessee and wanted to visit the Child. A visit was scheduled but canceled due to lack of transportation. Mother told Ms. Bentley that she wanted a relationship with K.Y., but she admitted that he had kept her from speaking about the Child with Ms. Bentley. Ms. Bentley had observed that K.Y. displayed a "very violent, rude, arrogant temper at times."

Dr. Bruce Seidner testified by deposition as an expert psychologist. Following an assessment of Mother, Dr. Seidner found that she was functioning at a mentally retarded level. He opined, to a reasonable degree of scientific certainty, that Mother "is significantly impaired and incompetent to such a degree that she could not be rehabilitated to parent a child independently."

At the time of the hearing, the Child was eighteen months old and had lived with her newest foster family for a few months. The Child was developmentally delayed and had "extraordinary" medical needs – she required occupational, physical, speech, and feeding therapy weekly. She also saw a neurologist and a pulmonologist for lung issues. The foster parents had two sons of their own and two other foster children in the home. Her foster mother testified that the Child called them "mommy" and "daddy." She said that the Child was loved by the rest of the family. The foster parents wanted to pursue adoption. During her visits, Ms. Bentley observed that the Child was "starting to attach" to her new home and foster parents.

Mother testified that she was pregnant by K.Y., but said they were no longer dating. Mother said she no longer had contact with K.Y., but then admitted she had communicated with him on Facebook within the past week. She said he had threatened her and their unborn child. Mother and Grandparents had not yet discussed a plan for protecting the unborn child from K.Y. Since returning from Florida, Mother had resumed living with Grandparents and began working at a Pilot convenience store.

Ms. Bentley stated that many of the permanency plan goals remained unmet, but she felt that Mother's lack of parenting skills was the primary concern. As to Mother's home, the yard had been mowed and some cleaning done around the porch, but wiring and other safety concerns were unresolved. Grandmother did not allow a scheduled "walk-through" of the home before trial and was absent at the time of the scheduled follow-up visit.

At the conclusion of the trial, the court ordered Mother's rights terminated. The court found that each of the four grounds alleged was clearly and convincingly established. Also by clear and convincing evidence, the court further found that termination of Mother's parental rights is in the best interest of the Child. Mother filed a timely notice of appeal.

II.

Before this Court, Mother essentially challenges the sufficiency of the evidence to support each of the cited grounds for termination as well as the trial court's decision regarding the best interest of the Child.

III.

With respect to parental rights termination cases, this Court has observed:

It is well established that parents have a fundamental right to the care, custody, and control of their children. While parental rights are superior to the claims of other persons and the government, they are not absolute, and they may be terminated upon appropriate statutory grounds. A parent's rights may be terminated only upon "(1) [a] finding by the court by clear and convincing evidence that the grounds for termination of parental or guardianship rights have been established; and (2) [t]hat termination of the parent's or guardian's rights is in the best interest[ ] of the child." Both of these elements must be established by clear and convincing evidence. Evidence satisfying the clear and convincing evidence standard establishes that the truth of the facts asserted is highly probable, and eliminates any serious or substantial doubt about the correctness of the conclusions drawn from the evidence.

In re Angelica S., E2011-00517-COA-R3-PT, 2011 WL 4553233 at *11-12 (Tenn. Ct. App. E.S., filed Oct. 4, ...


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