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In re Aisha R.

Court of Appeals of Tennessee, Knoxville

June 15, 2015

In Re AISHA R., et. al.[1]

Assigned on Briefs April 30, 2015

Appeal from the Juvenile Court for Hamilton County Nos. 252956, 252958 Hon. Robert D. Philyaw, Judge

Cara C Welsh, Chattanooga, Tennessee, for the appellant, Christee R.

Greta Locklear, Chattanooga, Tennessee, for the appellant, Matthew R.

Herbert H. Slatery, III, Attorney General and Reporter, and Mary Byrd Ferrara, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee, Department of Children's Services.

John W. McClarty, J., delivered the opinion of the Court, in which Charles D. Susano, Jr., CJ., and Thomas R. Frierson, II, J., joined.

OPINION

JOHN W. McCLARTY, JUDGE

I. BACKGROUND

Aisha R. and Sarah R. were born to Christee R. ("Mother") and Matthew R. ("Father") (collectively "Parents") on September 8, 2009, and January 17, 2011, respectively. Parents have a third child, also named Aisha R. ("Sibling"), who is not a subject of this termination appeal. Parents are intellectually disabled[2] and dependent upon government assistance. As a result of continued involvement with the Tennessee Department of Children's Services ("DCS"), Parents were provided in-home services from Tennessee Early Intervention Services ("TEIS"), Project HUGS, and Siskin Children's Institute ("Siskin") to aid them in the care of Aisha and Sarah (collectively "the Children").

On December 1, 2011, Parents attended a routine DCS team meeting with the Children. Those present noted that Sarah appeared hungry when a pacifier was offered. Mother stated that Sarah had not eaten since the night before. When prompted, Mother prepared a bottle for Sarah. The bottle prepared by Mother consisted of a jar of baby food, baby cereal, and water. Thereafter, DCS took the Children to T.C. Thompson Children's Hospital at Erlanger, where it was discovered that the Children were nutritionally deprived and had failed to thrive in the care of Parents. Sarah was below the baseline for weight, growth, and head circumference, while Aisha was in the fifth percentile. DCS took custody of the Children upon their release from the hospital. The Children were placed in foster care and adjudicated as dependent and neglected.

DCS developed three permanency plans from December 2011 to February 2013. These plans were ratified by the trial court. The plans required parents to safely store cleaning fluids, medications, and other items that may endanger the Children; install baby gates; supervise the Children when they are outside; maintain a clean and stable home; procure transportation; secure income to financially provide for the Children; submit to a mental health assessment and comply with recommendations; follow recommendations of a nutritional specialist; participate in parenting classes; develop a support system; comply with recommendations from in-home service providers; and keep medical appointments for the Children and follow any recommendations. Mother was specifically tasked with accepting assistance from her mental health provider, attending mental health appointments, and following any recommendations from said provider.

On December 10, 2012, DCS filed a petition to terminate each parent's parental rights to the Children. DCS alleged that termination was supported by the statutory grounds of failure to provide a suitable home, substantial noncompliance with the permanency plans, the persistence of conditions which led to removal, and mental incompetence. DCS later amended the petition to remove the ground of substantial noncompliance with the permanency plans.

A hearing was held over the course of several days from January through April 2014. Bertin R. Glennon, Ph.D. was certified as an expert in the field of psychological and parenting assessments. He performed Mother's parenting assessment on January 25, 2012. He stated that he was tasked with determining whether Mother functioned at a level sufficient to parent the Children or whether she could attain the ability to function at a level sufficient to parent the Children. He facilitated a Wide Range Intelligence Test ("WRIT") and completed a clinical interview before issuing his findings and recommendations. He related that he tested Mother's fluid intelligence, which he defined as her ability to perceive her environment and react accordingly, and her fixed intelligence, which he defined as her ability to learn, store, and then reproduce said information.

Dr. Glennon testified that Mother had a crystallized intelligence quotient ("IQ") of less than 35, a visual or fluid IQ of 38, and a general IQ of 35, which indicated that she suffered from a severe intellectual disability. He explained that those placed in that range responded to their environment at a second-grade level and had a basic fund of knowledge. He believed that Mother could not parent the Children without constant supervision. He further believed that it was unlikely that she could attain the ability to parent the Children. He stated that Mother was easily confused, hard to follow, and unable to focus. He recalled that Mother reported that she suffered from bipolar disorder. He explained that she suffered from a developmental disorder that hindered her decision-making ability and that he did not find evidence of a mental disorder.

Dr. Glennon conceded that the Children had grown since the time of his report but reaffirmed his assertion that Mother would need constant supervision if she were to parent the Children even as they grew older and surpassed her intellectual functioning. He agreed that Mother had likely learned new skills but explained that someone at her developmental level could not attain the skills to parent the Children in such a short time period. He doubted whether she would ever surpass her current functioning level.

Alice Greaves, Psy. D. performed Father's parenting assessment on March 5, 2012. She stated that she was tasked with determining whether there were any signs of a mental health personality structure or any substance abuse problems or other issues that might impair his parenting skills. She was also tasked with identifying any problems she found and the likelihood of risk to the Children as a result of those problems. She facilitated a WRIT and completed a clinical interview before issuing her findings and recommendations.

Dr. Greaves testified that Father had a crystallized IQ of 75, a visual or fluid IQ of 65, and a general IQ of 66, which indicated that he suffered from a mild intellectual disability. She related that those at that level responded to their environment at the level of an eight to ten-year-old. She believed that he was possibly functioning in the borderline range of intelligence based upon his description of his daily activities. She explained that he likely appeared more capable than he really was because his verbal skills were higher than his application skills. She related that he was capable of parenting the Children if he had a strong support system and was willing to share the responsibility of parenting and rely on his support system for advice and assistance. She set his level on the Global Assessment of Functioning scale at 51 out of 100. However, she set his level on the Global Assessment of Relational Functioning scale at 30 out of 100. She stated that the assessment measured how a person functions within the context of other people that he lived with and dealt with closely. She believed that he had little ability to resolve conflicts and that he lacked empathy for other people.

Dr. Greaves stated that despite Father's ability to parent, he did not appear to function at a responsible level for childcare, as evidenced by his blame of Mother for the Children's lack of nutrition. She explained that he did not believe that it was his responsibility to care for the Children. She admitted that he now realized that he could have prevented the Children's removal but asserted that he still did not really understand why the Children were removed. She stated that he turned down assistance from the Women, Infants, and Children program ("WIC") and other programs. She related that those functioning at his intellectual level often believe that they are more capable than they really are and that she believed his refusal of services was likely because he believed he did not need assistance. She believed that his lack of responsibility and failure to cooperate would impair his ability to parent and put the Children at risk. She did not believe he had the ability to parent young children. She conceded that she had not met with Father since she completed her report.

Dr. Greaves noted that Father was abused as a child and suffered from an anxiety disorder and post-traumatic stress. She stated that he also reported that he suffered from asthma, gout, arthritis, and memory problems. She said that he preferred to sleep during the daytime, which indicated he might also suffer from insecurity and fear. She related that he denied any issues with domestic violence.

Dr. Greaves testified that the placement of children with parents that are limited intellectually would limit the amount of stimulation necessary for brain development. She explained that such parents would only be equipped to teach their children a limited amount before the children were tasked with educating themselves in certain areas.

Jacqueline Tucker, a case manager for DCS, testified that she was assigned to work with Parents one month prior to the removal of the Children. She related that on December 1, 2011, she met with Parents for a family team meeting to discuss the services that were being provided to the family. She recalled that the meeting was scheduled to discuss Father's refusal to work with Siskin. She stated that the Children were present for the meeting that began at 10 a.m. and that Parents were later prompted to change Sarah's diaper. She accompanied Mother to the restroom, where she noticed that Sarah's small frame was hidden under three layers of clothing.[3] She stated that around 1:30 p.m., they discovered that Sarah had not eaten since the day before. At that point, Mother gave Aisha crackers and prepared a bottle for Sarah. The bottle prepared by Mother consisted of a jar of baby food, baby cereal, and water.

Ms. Tucker testified that as a result of Sarah's appearance and the fact that the Children had not eaten recently, she transported the Children to T.C. Thompson Children's Hospital at Erlanger, where they were diagnosed with failure to thrive. She related that the Children were placed in a foster home upon their release from the hospital. She asserted that the Children were adjudicated as dependent and neglected as a result of nutritional and environmental neglect and psychological harm. She explained that the nutritional neglect related to the Children's failure to thrive, that the environmental neglect related to an infestation of bed bugs in the home, and that the psychological harm related to Father's relationship with another woman named Ruby who acted as Father's wife. She noted that Father practiced polygamy and professed that he was Muslim. She admitted that Ruby had left the home by the time she became involved with the case.

Ms. Tucker testified that Parents had worked with DCS for approximately two years as a result of four prior referrals to DCS for various reasons. She related that DCS arranged for in-home service providers for each day of the week and that TEIS, Siskin, and Project HUGS all provided services for the family. She admitted that Parents were generally cooperative but asserted that they lacked the ability to follow through with recommendations and needed prompting to provide basic care for the Children. She noted that Sarah had a heart defect but that Parents failed to schedule an appointment with the cardiologist to examine Sarah. She recalled that Parents advised her that their apartment was infested with bed bugs. She later learned that the apartment had been treated for bed bugs but that the bed bugs reappeared because Parents failed to launder their clothing. She asserted that the landlord even provided Parents with quarters for the washing machine in the apartment complex. She admitted that a nutritionist was never assigned to visit their home but asserted that Parents failed to meet with a nutritionist at the Tennessee Health Department to determine Sarah's nutritional needs and retrieve WIC vouchers for ready-to-feed formula. She related that she also retrieved an application and health form from a daycare center near Parent's home. She gave Parents the application and the form and told them to fill out the application and schedule a visit with the pediatrician to update the Children's immunizations. She asserted that Parents simply failed to follow through with her instructions.

Ms. Tucker explained that Parents understood the information provided to them but that they were unable to retain the information and apply it without prompting. She related that Father had a cellular telephone and knew how to schedule appointments. She advised Parents that they could procure transportation for medical appointments through TennCare if they had car seats for the Children. She claimed that she had assisted several families with intellectual disabilities in the past but admitted that she had not received specialized training. She related that she referred Father to the AIM Center, Inc., which works with those who have intellectual and developmental challenges.

Adrian Boyd, a case manager for DCS, testified that she was assigned to work with Parents from December 2, 2011, until June 26, 2013, when she left to work in Bradley County. She recalled crafting three permanency plans for Parents and explaining the requirements of each plan to Parents. She claimed that she even reviewed the permanency plan line-by-line with Father when he expressed confusion at a later date. She opined that she was not any closer to returning the Children to Parents than she was on the day of removal. She asserted that the main barrier preventing the return of the Children was Parents' inability to care for the Children without prompting. She claimed that other issues also prevented the return of the Children, namely Mother's failure to keep medical appointments, issues of domestic violence, and budgeting concerns.

Ms. Boyd agreed that that she did not have specialized training to work with intellectually disabled parents. She stated that she attempted to provide specialized assistance by coordinating with FamilyMenders for in-home services. She also contacted Orange Grove to secure additional help. She explained that Orange Grove advised her that Parents needed to contact them directly. She also made herself available to the family and met with each parent individually to provide additional assistance. She stated that she did not provide the same hands-on instruction to other families.

Ms. Boyd recalled holding a meeting to address concerns related to weapons in the home, budgeting, employment, mental health, and marital issues. She explained that the in-home FamilyMenders service worker, Fatima Fagan, refused to visit the home when she learned that Father possessed weapons. She related that Father admitted ownership of the weapons and agreed to store them elsewhere. She also attempted to assist Parents with budgeting. She explained that Parents did not have enough money for food because Father spent Mother's supplemental security income from the Social Security Administration to lease a vehicle from a friend. She related that as a result of the meeting, Father returned the car and began contributing to the household by donating his blood and applying for Social Security benefits. She addressed Mother's mental health issues by transporting Mother to her medical appointments. Mother failed to keep her appointments when she left the case. She recalled that Mother complained that Father was violent toward her and brought other women into the household. She asserted that Mother called the police several times but that her repeated claims were ultimately unfounded. She related that Father eventually left Mother and moved out of the residence. She also referred Mother to Adult Protective Services approximately three times. Mother refused assistance.

Ms. Boyd also assisted with the supervised visitation. She stated that at first, the supervised visits occurred at the office. She claimed that Parents were inconsistent with the visitation schedule and often missed visits or left early. She related that Parents were more consistent once the Children were transported directly to them for in-home visitation. She claimed that Parents were often unprepared for the in-home visits or waited until the Children arrived to cancel the visit due to sickness or other reasons. She stated that Parents prepared the same food each week, either cereal or peanut butter and jelly sandwiches. She recalled providing Parents with a nutritional plan, explaining the types of foods the Children needed, and advising Parents to not provide the same food each week.

Ms. Boyd agreed that Parents were compliant with their parenting plan when she filed the termination petition. She explained that Parents were able to follow instructions but lacked the capacity to operate independently. She claimed that she still received telephone calls from Parents concerning domestic issues and asserted that Parents had simply not progressed enough to warrant a delay in filing the termination petition. She recounted the events of a family team meeting on March 1, 2013, during which Parents exhibited unstable behavior.

Relative to Father, Ms. Boyd testified that he enjoyed a bond with the Children. She recalled that he initially stated that he was not responsible for tending to the Children because of his religion. She related that he later accepted responsibility for the Children and began providing assistance. She stated that she investigated Father's new residence after he and Mother separated. She stated that the residence was appropriately furnished and that he had food but that he allowed a woman whose children were in DCS custody to live with him. She agreed that Father slightly advanced in his parenting skills once he moved. She related that Father provided sandwiches for the Children after she instructed him to provide something other than canned ravioli. She asserted that despite his improvement, she did not believe that he was able to parent the Children without assistance. She was concerned that he would refuse assistance once the Children were returned to his care. She claimed that Father was never able to parent independently without prompting throughout her involvement in the case.

Relative to Mother, Ms. Boyd testified that Mother understood her instructions but was simply unable to follow through without prompting. She was also concerned about Mother's ongoing mental stability. She sought additional case management for Mother through Joe Johnson Medical Center, but Mother refused the additional assistance. Mother later requested additional assistance, but the medical center threatened to discontinue services altogether because Mother failed to appear for appointments. She did not believe that Mother would ever have the ability to parent the Children without assistance. She agreed that the Children were older and able to seek assistance through other sources, namely through school and day care, but she was unsure as to whether the Children could identify improper treatment from Mother as neglect.

Lashunda Williams, a DCS family service worker, testified that she was assigned to the family in July 2013, approximately seven months after the initial termination petition was filed. She admitted that she had not received specialized training to work with intellectually disabled parents. She claimed that she observed very little to no improvement in either parent's ability to parent. She noted that Parents did not provide care for the Children without continual prompting. She asserted that Parents never identified any acceptable forms of family support. She admitted that Parents were not provided with a nutritionist to teach them how to feed the Children but asserted that Ms. Boyd met with a nutritionist and established guidelines for Parents to follow. She claimed that those guidelines were provided to Parents.

Relative to Mother, Ms. Williams recalled that Mother was inconsistent with visitation and that visitation was moved to the DCS office because Mother allowed an unidentified man to reside with her. Mother advised her that the man sold drugs. She agreed that Mother later identified the man as her brother but refused to provide additional information concerning his name or contact information. She stated that she conducted an unannounced home visit in August 2013, where it was discovered that Mother had expired food in the fridge and cabinets and outdated medication in the medicine cabinet. She recalled assisting Ms. Boyd in assembling a care package for Mother that consisted of undergarments, a purse, shampoo and conditioner, and condoms. She testified that she could not find Mother to transport her for visitation on August 21. She agreed that Mother was present for visitation at the DCS office on August 28. She asserted that Mother did not provide food for the Children during that visit. She admitted that Mother recognized that Sarah's diaper was dirty but asserted that Mother did not change until Mother was prompted to take action.

Ms. Williams stated that Mother called her on September 4 from Illinois. Mother complained that her mother would not give her money, while her mother asserted that she was disruptive to the household and had physically assaulted Sibling.

Ms. Williams testified that Mother did not visit the Children as scheduled on September 18 but that she observed a visit on September 25, where Mother did not provide food for the Children. She stated that she reminded Mother of her responsibility to provide food for the Children and that Mother provided food for the Children during the next three visits that she supervised. She claimed that while Mother complied with the instruction to bring food, Mother did not interact well with the Children and needed continual prompting.

Relative to Father, Ms. Williams testified that she met with Father at his home on August 1, 2013. She recalled that Father did not have a bed for the Children or a kitchen table but that his home was very well organized and stocked with food. She agreed that he later obtained a bed for the Children and that she did not offer to assist him in an effort to procure a table. She admitted that Father attended a visit in September and that he engaged with the Children during visitation and demonstrated appropriate discipline of the Children. She stated that Father also attended a visit in October and that she recalled advising Father on appropriate foods to prepare for the Children.

Ms. Williams acknowledged that she was not present for Father's visitations in November and December and that he had not visited the Children since December 2013. She testified that despite her observation of Father during visitation, she could not provide a recommendation as to whether he had the ability to parent the Children ...


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