Session Date: April 07, 2015
Appeal from the Juvenile Court for Davidson County No. 169539 Sophia Brown Crawford, Judge
Nicholas Perenich, Jr., Nashville, Tennessee, for the appellant, Heidi G.
Jacqueline B. Dixon, Nashville, Tennessee, for the appellees, Steven C. and Kathryn C.
Cynthia H. Moore, Nashville, Tennessee, Guardian Ad Litem.
J. Steven Stafford, P.J., W.S., delivered the opinion of the Court, in which Arnold B. Goldin, J., and Kenny Armstrong, J., joined.
J. STEVEN STAFFORD, JUDGE
In November 2007, Jamie G. ("Jamie" or "the child") was born to Heidi G. ("Mother") in Nashville, Tennessee. Jamie was born with several abnormalities or disabilities, including Tetralogy of Fallot and DiGeorge's Syndrome. After he was born, Jamie lived with Mother in Davidson County, Tennessee. Mother also had three other children, all of whom she had custody of at the time of Jamie's birth. Mother's other children include Autumn G., Austin G., and Cy G. Both Austin and Cy had some special needs involving learning and behavioral issues. Although the proceedings concerning Mother's parental rights to Jamie did not begin until January 2013, Mother has a lengthy history with the Department of Children's Services ("DCS") that dates back to 2008.
On January 11, 2008, DCS filed a Petition for Custody with Request for Emergency Removal and Request for Child Support in the Davidson County Juvenile Court. The petition sought to remove the children from the legal custody of Mother. Jamie was two months old when the petition was filed. DCS's petition asserted that Mother had several untreated mental health issues and became violent against maternal grandmother ("Grandmother"), whom Mother and the children lived with at the time. The record indicates that Grandmother contacted DCS indicating that Mother had become "very destructive and has a tendency to tear the house up when she becomes upset." As a result of this petition, the children entered DCS custody.
After a hearing on February 20, 2008, before the Juvenile Court of Davidson County, the juvenile court entered its Agreed Order of Adjudication and Disposition. This order adjudicated Jamie, along with his siblings, dependent and neglected "because of [Mother's] ongoing mental health issues and her failure to take medication consistently." The juvenile court also found that Mother's instability led to her inability to provide sufficient housing for the children and also led to the conflict with Grandmother. The juvenile court noted that Mother had admittedly used marijuana at the time DCS filed its petition in January 2008. Ultimately, the juvenile court approved an agreement between the parties providing that Grandmother would be awarded temporary custody of Jamie and Autumn. Custody of the other two children, Austin and Cy, was awarded to Catherine P., who is their maternal aunt. The court ordered Catherine P. to supervise all of Mother's visitation with the children, which was to occur at Catherine P.'s house. From a practical standpoint, it is unclear whether Mother's visitation with Jamie at this point only occurred under Catherine's supervision because Jamie resided in Grandmother's home with Mother. The juvenile court's order provided that it was the court's "standard practice to allow a one year time frame within which the parent will be given the opportunity to remedy the conditions that necessitated foster care placement or temporary legal custody being granted to a relative." To this end, the court stated that Mother had one year (until January 2009) to "rehabilitate [her] circumstances." As discussed in detail infra, although there were a multitude of proceedings concerning the children over the next several years, after this order was entered, Jamie was never returned to Mother's custody.
Following the entry of the juvenile court's order, the juvenile court continued to monitor whether Mother was making progress. In November 2008, Mother entered Family Treatment Court, where she tested negatively on drug screens for several months. Mother, Grandmother, and Jamie continued to live together for nearly two years. Upon additional review by the juvenile court, the juvenile court entered an order on September 10, 2009, stating that "[u]sually when a commitment to sobriety is present, other aspects of a client's life fall into place. Unfortunately, that has yet to be the case." The juvenile court noted that Mother was still unemployed and lacked her own residence or a plan to pay for her own residence. The court also found that it was unlikely she would be able to care for the children without Grandmother's assistance and also found that she "does not seize an active parenting role for her children." The juvenile court afforded Mother sixty days from the entry of this order to demonstrate to the court that she desired to be the children's primary caregiver.
After the expiration of the sixty days, on November 6, 2009, the juvenile court entered another order reviewing Mother's progress and finding that it was not in the children's best interest to be in the custody of Mother. While the court noted that Mother had made sincere, but unsuccessful, attempts at obtaining employment, the court found that Mother did not have the "temperament, patience, or consistency" to parent the children, especially in light of Jamie and Austin G.'s special needs.  Ultimately, this order terminated Mother's involvement with the Family Treatment Court. The court placed legal custody of three of the children (Austin G., Cy G., and Jamie) with Grandmother,  but put no restrictions upon Mother's visitation. Finally, the court reminded Mother that she was "free to file a petition for a return of custody when she sees fit to do so."
Jamie and his two brothers lived with Grandmother from February 20, 2008, the date of the initial grant of custody to Grandmother, until she passed away on June 7, 2011. Shortly before Grandmother passed away, in May 2011, she contacted Kathryn C. and Steven C. (together, "Appellees") to give them a power of attorney over Jamie. Kathryn C. worked for an organization that provided in-home development therapy and other services to Jamie at Grandmother's home. Before Grandmother passed away, she attended a court appearance where both Mother and Appellees were present. At this time, the court granted legal custody of Jamie to Appellees. Mother made no objection at this time to the transfer of legal custody to Appellees. Shortly thereafter, on June 7, 2011, Grandmother passed away.
After Grandmother's death, several petitions were filed concerning legal custody of the four children. Appellees filed a petition for custody of Jamie. The paternal grandparents filed a petition for custody of Austin G. and Cy G. The maternal grandfather, Richard B., ("Grandfather") filed a petition for custody of all four children. The children's Guardian ad Litem ("GAL") filed a petition for Catherine P. to have custody of Autumn G. Finally, Mother filed a petition for a return of custody, citing a material change in circumstances.
On August 2, 2011, the juvenile court held a trial on all of the above petitions. The juvenile court entered an order on September 2, 2011. The court dismissed Mother's petition based on her failure to prove a material change in circumstances. Moreover, the court stated that Mother failed to remedy the conditions warranting removal of the children originally. At this time, Mother remained unemployed and lacked housing, transportation, and a driver's license. The court also found that Mother had removed herself from medications used to treat her mental health issues. Additionally, Mother had incurred domestic assault charges just several months prior to the hearing. Accordingly, the juvenile court awarded legal custody of Jamie to Appellees; legal custody of Austin G. and Cy G. to the paternal grandparents; and legal custody of Autumn G. to Catherine P. Mother was limited to once-per-month visitation with all the children and telephone visitation twice per week. The court specifically noted:
[I]f she misses the visitation, then the Court may stop the visitation. If the visits go well and the Mother makes good progress on her individual issues, the Court will increase her visitation. Specifically, the Court again advised the Mother she needs to obtain stable housing, transportation, employment, alcohol and drug sobriety and mental health stability.
Several months after the court's grant of custody to the Appellees, on March 15, 2012, the Appellees filed a request against Mother for child support for Jamie. The court entered an order requiring Mother to pay child support to the Appellees in the current amount of $285.00 per month and retroactive support in the amount of $1, 995.00, totaling $328.33 per month. The record indicates that Mother failed to pay support as ordered; however, Mother did begin paying some support after Appellees filed their petition to terminate her rights. Ultimately, she made seven payments totaling $989.55 for the period between March 26, 2013, and June 17, 2013. She also made two payments totaling $168.11 for the period between July 1, 2013 and July 15, 2013.
It appears that the visitation ordered by the court on September 2, 2011, continued until July 2012, when the Appellees filed a Motion to Suspend and/or Modify Mother's Visitation based on an alleged outburst of Mother at a recent visitation. On September 13, 2012, the juvenile court magistrate entered a written order specifically stating that it was "not terminating Mother's visitation but leaving it in Mother's control based on the fact that continued visitation will only occur once Mother is able to demonstrate compliance with the directives in the Court's Order of September 2, 2011, " wherein the court ordered Mother to address her issues with employment, transportation, and mental health. The juvenile court also ordered Mother to obtain a mental health assessment before she could seek a modification of this order.
On January 28, 2013, Appellees filed a petition to terminate Mother's parental rights on several grounds: abandonment by willful failure to visit, abandonment by willful failure to support, persistence of conditions, and incompetency. At some point prior to this filing, Mother had appealed the magistrate's September 13, 2012, order purporting to modify her visitation to the juvenile court. Mother had no visitation with Jamie while her appeal was pending. After a hearing on January 29, 2013, the juvenile court revised its order and permitted Mother to have visitation with Jamie on two separate dates in February and March.
The juvenile court held a trial on Appellees' termination petition on various dates between July 15, 2013, and May 18, 2014. Jamie was six years old at the start of trial. As can be expected, much of the testimony concerned the circumstances surrounding Mother's alleged failure to exercise visitation with Jamie, her alleged failure to financially support Jamie, and her alleged failure to remedy the conditions that warranted Jamie's removal from her custody initially.
Regarding visitation with Jamie, Mother testified that she was under the impression that her visitation with Jamie was suspended by the juvenile court magistrate's September 13, 2012, order, discussed supra. She also testified that, in response to the purported suspension of her visitation, she "appealed" the September 13, 2012, order to the juvenile court judge, who then reinstated visitation by order entered February 20, 2013. Mother also recounted various times where she had visited with the child while he was in Appellees' custody.
Mother also testified that she had been arrested in connection with several episodes of domestic violence. Sometime in 1998, Mother pleaded guilty to a charge of child abuse. Mother's sister, Catherine P., called the police and alleged that Mother had picked up her sister's child by his neck and threw him across the room. Mother testified that she did not pick him up by his neck, but she did pick him up "by his overalls, and I sat him. I did not toss him." She testified that she pleaded guilty primarily because she wanted out of jail. For this incident, she was placed on probation for eleven months and twenty-nine days.
Mother's testimony also revealed that Mother had been convicted of felony child abuse and neglect in 2000. Again, Mother alleged that she was "manipulated to plead guilty, " after prosecutors asserted that she had beaten a three-month-old baby. Mother's testimony as to how this incident occurred is confusing. From what we can discern, she testified that she was babysitting when the baby was attacked by a puppy. Mother again pleaded guilty, but denied responsibility. She ultimately served nine months in jail for this offense.
In addition to her testimony regarding the misdemeanor and felony child abuse charges, Mother testified that she had been charged several times with domestic violence. In 1998, Mother was charged with domestic violence against her sister's boyfriend. Again, in 2003, Mother was charged with domestic violence after Grandmother called police because Mother "got mad and threw [a] plate." In 2004, Mother was charged with domestic violence against Grandmother. In 2011, Mother was charged with domestic violence against her sister at Grandmother's house.
Most recently, on July 3, 2013, Mother and her boyfriend, Marcus B., with whom Mother lives, were both arrested and charged with domestic assault after an incident at their home. Marcus B. told police that the altercation began over an argument concerning Mother's Facebook page. Mother testified that the incident was largely the result of a medication she was prescribed for headaches, which caused her to become angry and combative. Her testimony indicates that she no longer takes this medication. Mother told the police that she locked Marcus B. out of their house, and he kicked in the door. She then locked herself in the bathroom, and Marcus B. kicked in that door as well. Marcus B. then threw Mother on the bed, and she bit him on his thumb and head-butted him. The police arrested both Mother and Marcus B. Ultimately, the court issued an order prohibiting Mother and Marcus B. from having contact until the next court hearing on August 15, 2013. Mother's testimony regarding her compliance with this order is conflicting. First, Mother testified that that she and Marcus B. immediately made up and that she moved back into the house the day following the incident, in direct contravention of the no-contact order. Mother testified that during this time, Marcus B. taught Mother how to shoot an AR-15, a semi-automatic firearm. At another point in her testimony, Mother stated that she moved in with a friend for a time, but then eventually moved back in with Marcus B. Regardless, Mother testified that she contacted Marcus B. at least twice during the period in which she was to have no contact with him, explaining that she needed a ride to two separate visitations. Although it is unclear from the testimony, the no-contact order appears to have been dissolved at the August 15, 2013, hearing on the couple's domestic violence charges.
Mother also testified as to the allegation that she failed to support Jamie. Mother testified that although she had sought employment, she was unsuccessful and, therefore, lacked stable employment at the time of trial. Mother's testimony regarding her work history demonstrates sporadic employment history at several jobs. Sometime during June and August 2012, Mother worked as a telemarketer for approximately one week and at a store in the mall for approximately three weeks.
During the pendency of this case, she was employed in several capacities. First, she testified that she received some income from housecleaning. Mother stated that she earns "anywhere between $50 to $100" cleaning houses once or twice a week. In contrast, Marcus B. testified that he was unsure of the precise amount Mother earned from cleaning houses, stating it was "20 to 30 bucks here and there." Although Mother earned income sporadically from housecleaning throughout the relevant four-month period, she testified that she gave the money to Marcus B. because he paid their rent and provided her transportation to court appearances and visitations.
Although she testified that she cleaned houses sometimes twice a week, Mother stated that she only has two regular customers. She said that these customers only request her services once per month. Mother's testimony is unclear as to how many other clients she cleans for during the week. She testified, however, that she cleaned houses less often so she would be able to attend visitation with her children. She also stated that it was difficult to find clients. Mother acknowledged that she was aware of several ways to increase her customer base, such as advertising on Craigslist and putting signs through her neighborhood; however, she never did either of those things. On cross-examination, counsel for Appellees and Mother had the following exchange:
Q. And you clean at least one house a day or maybe two, couldn't you?
Q. So you could conceivably make $100 a day cleaning houses, couldn't you?
A. I could have, but I didn't.
The record is unclear as to when she began cleaning houses and the last time she earned money cleaning houses.
In addition to housecleaning, Mother testified that she also earned money by working with her boyfriend, Marcus B., who worked at an auto body shop and also "junked" cars for additional income. Marcus B. said that this money immediately "went right back into the gas tank" because Marcus B. drove Mother to Manchester, Tennessee, so she could attend the proceedings involving the removal of her other children. Marcus B. corroborated Mother's testimony as to his payment for her help and testified that this arrangement continued from about September 2012 until January 2013. Mother was able to help less when her Father's cancer worsened during October 2012. Mother testified that she was actively searching for employment during the relevant time period by applying for jobs in her area. Mother testified that she searched for employment by "walking around my surrounding areas" and turning in applications to various employers, including Burger King, Auto Zone, Dollar General, Save-A-Lot, Papa John's, Kroger, and a dry cleaning store.
Similarly, Mother testified that someone referred her to a manager at a local Waffle House restaurant and said that if she would just go by "La Vergne [Waffle House] and let them know that I did talk to her and could work for her." Mother testified that she had not yet turned in an application. Likewise, Mother testified that she had another job lined up at "A Second Look Consignment" in Smyrna, Tennessee, but her testimony indicates she had not pursued that opportunity yet. Additionally, Mother's records from her mental health provider, Centerstone Community Mental Health Care Center ("Centerstone"), show that Mother said she was "let go alot" because her skills were poor, despite having earned a high school diploma and attending some college.
Mother testified that she has filed for unemployment benefits, but she does not receive any money from unemployment benefits. In contrast, Mother's Centerstone records indicate that Mother declined to apply for disability benefits. At the same appointment where Mother indicated her refusal to apply for disability benefits, the counselor recommended that Mother apply via the internet for a public benefit called Bridges to Care. Despite the fact that Mother appears to have internet access,  the record does not indicate that Mother ever applied. Still, Mother receives over $497.00 per month from a resource called Families First for her and three of her children.  She testified that she is currently unemployed, but that she is "pretty busy." She gets her children ready for school in the morning and then stays at home during the day until they are finished with school. During the day, she watches television and cleans the house.
Eventually, after the filing of the termination petition and with the assistance of a DCS worker, Mother obtained employment at Goodwill as a "clothes grader." During training to become a clothes grader, Goodwill paid Mother $7.25 per hour. After Mother's three weeks of training, Goodwill paid her $7.75 per hour. Mother testified that she called the child support office immediately after being hired by Goodwill, and child support was garnished from her check. Mother worked at Goodwill from March 3, 2013 until July 2, 2013. Goodwill ultimately terminated Mother's employment because she was late several times.
Mother testified that she still lacked a driver's license and transportation. Generally, Marcus B. supported Mother and paid their rent and bills. Still, Mother testified that she had obtained stable housing because she and Marcus B. lived in an apartment together, and both signed the lease. Although Mother's testimony was inconsistent at times, her testimony indicates that she lived with Marcus B. beginning in May 2012 and that she may have lived with him even while there was an order prohibiting the couple from contacting each other. Mother contends that she contributed to the couple's $1, 175 monthly rent at least once in the amount of $50.00. Mother is unable to obtain government-subsidized housing because of her felony conviction.
Turning to Mother's testimony regarding her mental health treatment, Mother contended that she had been compliant with her mental health therapy sessions and medications. Mother suffered from mental health issues for years before her children were removed from her care. Her mental health records indicate that she began treatment at Centerstone on December 3, 1999. Her most recent cycle of treatment at Centerstone began on September 28, 2012, shortly after the juvenile court's order of September 13, 2012 ordering her to address, inter alia, her mental health issues. Throughout her treatment there, she has received several diagnoses, including intermittent explosive disorder, major depressive disorder, cannabis dependent episodic, borderline personality disorder, and bipolar disorder. Mother's Centerstone records indicate that these diagnoses resulted in Mother suffering from periods of emotional instability, anger, and violent outbursts. Mother stopped taking certain medications used to treat her mental health while pregnant with Jamie. It is unclear from the record whether Mother's cessation of her medication was ordered by her medical doctor. Still, Mother admitted that she did not resume taking her prescribed medication even after Jamie's birth. Mother asserts however, that since the children were removed from her care on February 20, 2008, she has consistently taken her medication as prescribed and has consistently attended her therapy appointments. She stated that if she was unable to attend an appointment, she promptly rescheduled.
On cross-examination, counsel for Appellees questioned Mother's alleged compliance with her mental health treatment and medications. Centerstone and its counselors keep a record of each scheduled appointment, including notes as to what was achieved at the appointment. Numerous Centerstone records include notes from her counselors stating that Mother "no-showed" for the appointment or canceled at the last minute. On one record, a Centerstone representative noted that, "[Mother] claims unique [circumstances] each time and accepts no responsibility." Mother testified that many of these records were simply incorrect. In all, from September 2012 until December 2012, Mother attended four appointments and canceled or was a no-show for at least seven appointments.
Mother's testimony regarding her compliance with her medication was often confusing. During September 2012 through December 2012, Mother missed four medication management appointments. It was at the medication management appointments that Mother could receive refills on her prescriptions. After the termination petition was filed in January 2013, Mother's attendance at her Centerstone appointments improved. From January 2013 until October 2013, Mother attended twenty-two appointments, and canceled or was a no-show for eleven appointments. Mother maintained at trial that she did not feel as if the medications were working, but testified that she had consistently been taking them. However, prior to October 2012, Mother testified that, prior to October 2012, she had been off her medication for approximately ten months. When Mother testified on July 15, 2013, she said that she had started taking a new medication on April 2, 2013, and that was currently the longest period she had ever been compliant on one medication. In further contradiction of Mother's direct testimony, the record includes as an exhibit a letter dated January 25, 2013, from Ms. Audra Bush, a DCS case manager, to the juvenile court wherein Ms. Bush states that Mother had expressed that she did not need all of the medication prescribed by Centerstone and that Ms. Bush was currently having issues with Mother's compliance at Centerstone.
Ms. Bush also testified at trial. Ms. Bush's testimony focused on Mother's therapy, medication, and attempts to secure housing and employment. Ms. Bush testified that DCS required Mother to obtain a mental health assessment, follow mental health recommendations, be compliant with her medication management, obtain adequate and stable housing, and secure a legal means of income. Ms. Bush stated that Mother and Marcus B.'s home was suitable for an additional child and that she did not doubt Mother's housekeeping abilities. Further, she described Mother's attempts at securing employment as "diligent." She testified that, although Mother missed several of her mental health appointments at Centerstone, "she always rescheduled those appointments." However, on cross-examination, Ms. Bush admitted that any public assistance Mother received was not enough to pay her monthly rent. Still, Ms. Bush insisted that Mother's home was suitable for Jamie's return, even though she was aware of the recent domestic violence incident between Mother and Marcus B. She stated that she believed that Mother was compliant with any anger management requirements set forth by DCS, but she admitted she actually did not know whether Mother attended anger management and that she has not received any Centerstone records indicating that she had.
At trial, Appellees, with whom Jamie currently resides, also testified. Appellees described their time spent with Jamie, how they have bonded with him, and his development while in their care. Kathryn C. first met Jamie when she worked doing in-home developmental therapy for First Steps, Inc. ("First Steps"). The therapy typically included one hour sessions of exercises to address Jamie's delays in motor skills and cognitive development. Kathryn C. provided services at Grandmother's home to Jamie beginning in May 2008 when he was six months old. She provided these services until November 2010.
Regarding the in-home therapy sessions, Kathryn C. testified that she primarily worked with Grandmother, and Mother was usually asleep when the sessions began. Kathryn C. was required to keep notes of all visits in Grandmother's home, and she indicated in her notes that Mother sometimes participated in the sessions. At trial, however, Kathryn C. testified that Mother "was typically asleep on the couch or out of the room or . . . playing on her phone in the kitchen. But my contact was primarily done with [Grandmother]." Kathryn C. indicated that Mother occasionally showed interest in Jamie's therapy, but "[i]t kind of seemed to depend on when she had to go to court." Additionally, Kathryn C. testified that Mother would often yell at others in the home to "shut up . . . because she was trying to sleep." Kathryn C. also indicated that she was concerned regarding the constant smoking in the home because of Jamie's heart condition. She also testified that Mother often would say "That's not my responsibility, " when requested to get the children ready or to change Jamie's diaper.
Jamie began to live with Appellees immediately after Grandmother passed away. Steven C., Kathryn C.'s husband, testified that Appellees' extended family supported the decision, and Jamie's developmental issues had improved since the child had come to live with them. Steven C. testified that he, Kathryn C., and Jamie shared a close bond.
Appellees and their witnesses generally testified that Mother's outbursts often disrupted visitation while Jamie remained in Appellee's custody. At one visitation at a local McDonald's restaurant, Mother became violent with her elderly father who was also attending the visitation. Her father had recently been diagnosed with Stage IV cancer. Mother cursed at him, screamed, and shoved him. According to Appellees, Jamie was in close proximity. Mother also became combative with her sister, Catherine P., at a visitation when Catherine brought her own children to the visitation. Mother believed Catherine's children would take away from her visitation with Jamie. According to Appellees, Mother began arguing ...