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In re Marcell W.

Court of Appeals of Tennessee, Jackson

July 16, 2015


Assigned on Briefs May 20, 2015.

Appeal from the Circuit Court for Shelby County No. CT00521313 Robert Samual Weiss, Judge.

Reginald E. Shelton, Memphis, Tennessee, for the appellant, Michelle W.

Herbert H. Slatery, III, Attorney General and Reporter; Ryan L. McGehee, Assistant Attorney General, for the appellee, State of Tennessee, Department of Children's Services.

J. Steven Stafford, P.J., W.S., delivered the opinion of the Court, in which Arnold B. Goldin, J., joined in part, and Brandon O. Gibson, J., joined in part; Arnold B. Goldin, J.




On September 3, 2012, the child at issue, Marcell W.[1] ("the child" or "Marcell"), presented at LeBonheur Children's Hospital ("LeBonheur"). The child's mother, Michelle W. ("Mother") informed LeBonheur's staff that the child was not acting normally. Upon examination, doctors discovered that, among other issues, the child was bleeding in his brain and a liver laceration. The child was approximately five months old at the time. No explanation was given by Mother as to the cause of these injuries. Accordingly, on September 4, 2012, LeBonheur made a referral to the Tennessee Department of Children's Services ("DCS") regarding the child. The referral indicated that the perpetrator was unknown.

Juvenile Court Proceedings

On September 14, 2012, while the child remained at LeBonheur, DCS filed a petition in the Shelby County Juvenile Court to adjudicate the child dependent and neglected and the victim of severe abuse. The petition alleged that the child presented to LeBonheur with a right subdural hematoma, [2] elevated liver function, a right-lobe liver laceration, a buckle fracture on the left wrist, and bilateral retinal hemorrhages.[3] According to the petition, the only explanation Mother gave for the injuries to the child was that the child may have hit his head while sleeping next to a wall. The petition further alleged that after a Child and Family Team meeting was held with Mother, the team agreed that returning the child to the home was not in the child's best interests. Although a relative placement was explored, no relative placement was subsequently approved. Accordingly, DCS recommended that temporary custody of the child be awarded to DCS. The child was ultimately placed in a foster home. Finally, because of the severe injuries to the child, DCS asked that the juvenile court find that Mother committed severe abuse of the child.

On September 14, 2012, [4] Magistrate Herbert J. Lane, acting as Special Judge, signed a protective custody order temporarily vesting custody of the child with DCS. The order further directed that a guardian ad litem would be appointed for the child, "consider[ed] the need to appoint counsel" for the child's parents, [5] and set a preliminary hearing for September 29, 2012.Juvenile Judge Curtis Person ("juvenile judge") subsequently appointed counsel for Mother and a guardian ad litem for the child.

On October 25, 2012, an order was entered containing the findings and recommendations of Magistrate David S. Walker with regard to the preliminary hearing. Specifically, Magistrate Walker ruled that the protective custody order should remain in effect pending a final hearing, that because of the child's injuries, it was not reasonable to make efforts to maintain the child in the home, and that no less drastic alternative existed to placing the child in DCS custody. Accordingly, Magistrate Walker ruled that the child should remain in DCS custody pending a final hearing. The juvenile judge subsequently adopted the findings and recommendations of Magistrate Walker.

On January 30, 2013, Juvenile Magistrate Felicia M. Hogan entered an order continuing the current placement of the child and ratifying a permanency plan for the child. The permanency plan included the goals of return to parent and/or adoption. The order further stated that Mother was fully compliant with the existing permanency plan. The juvenile judge subsequently adopted the findings and recommendations of Magistrate Hogan.

The dependency and neglect action was heard on April 2, 2013, by Magistrate Hogan.[6]Magistrate Hogan entered an order containing findings and recommendations on April 25, 2013.Specifically, Magistrate Hogan ruled that the petition to adjudicate the child dependent and neglected should be sustained due to clear and convincing evidence that the child was a victim of severe abuse committed by Mother. The magistrate's findings were adopted, ratified, and confirmed by the juvenile court judge. On April 9, 2013, Mother filed a request for a rehearing before the juvenile judge. On the same day, the juvenile judge entered an order permitting a rehearing.

A rehearing was scheduled to occur on July 8, 2013. On July 31, 2013, an order was entered by Magistrate Dan H. Michael, which indicated that he had been appointed as Special Judge to preside over the rehearing because the judge found it necessary to be absent from holding court pursuant to Tennessee Code Annotated Section 17-2-122(b).[7] Special Judge Michael continued the hearing to September 23, 2013 at Mother's request. On September 18, 2013, Mother filed a motion for pre-trial discovery. On the same day, Mother filed a motion in limine to exclude: (1) all evidence that was not submitted to her in discovery; (2) all testimony regarding matters not alleged in the petition; and (3) to limit the testimony of DCS's expert to only "the nature and extent of the injuries suffered" by the child, specifically excluding any testimony regarding causation or culpability. On September 20, 2013, Magistrate Hogan ratified another permanency plan for the child. This plan contained the goals of permanent guardianship and/or adoption.

Ultimately, the rehearing of the dependency and neglect finding occurred on September 23, 2013.[8] Present at the hearing were Mother, the child's guardian ad litem, representatives from DCS, and Deborah V. ("Foster Mother"), the child's foster parent. Again, Special Judge Michael presided over the cause, as the juvenile judge found it necessary to be absent from holding court.[9] In its November 27, 2013 ruling, the Special Judge confirmed the magistrate's ruling that clear and convincing evidence existed to support a finding of both dependency and neglect and severe abuse. The Special Judge also changed the permanency plan to reflect a goal of adoption only. Accordingly, the Special Judge ordered that the child be placed in the legal custody of Foster Mother. Mother filed a timely notice of appeal to the Shelby County Circuit Court ("the circuit court" or "the trial court").

Proceedings in the Circuit Court

After the appeal of the matter to circuit court, on January 31, 2014, DCS filed an emergency petition to correct the Special Judge's order. Specifically, DCS alleged that although the Special Judge's order directed that legal custody of the child be placed with Foster Mother, the Special Judge ruled from the bench that the child would remain in the custody of DCS pending adoption proceedings. DCS argued that removing the child from DCS custody had significant ramifications, as the foster parents would no longer be eligible to receive financial support to meet the child's medical needs. Accordingly, DCS requested that the matter be remanded back to the juvenile court for correction of the order.

On January 31, 2014, a consent order was entered allowing this cause to be remanded back to the juvenile court to correct the error in the November 27, 2013 order. On March 26, 2014, an order of correction was entered in juvenile court returning legal custody of the child to DCS.

On March 28, 2014, David R. and LaChundia R. (together, "Intervening Relatives") filed a motion to intervene in the proceedings and to stay the magistrate's ruling with regard to the changed permanency plan goal. Specifically, Intervening Relatives alleged that they were maternal cousins of the child who had been cooperating with DCS to serve as a relative placement for the child. According to Intervening Relatives, they had recently completed classes to be recognized as foster parents by DCS and had been attending meetings and doctor's appointments on behalf of the minor child. Intervening Relatives were allegedly approved as a resource parent home on September 25, 2013. Intervening Relatives argued that they were being unlawfully denied the opportunity promised them by DCS to parent the child. In their motion, Intervening Relatives stated that a Child and Family Team meeting took place on August 27, 2013, wherein the team agreed to place the child with Intervening Relatives pending their approval as a foster home. According to Intervening Relatives, the Special Judge at the rehearing on September 23, 2013 impermissibly changed the goal contained in the permanency plan to adoption without prior notice to the parties and in violation of Tennessee Code Annotated Section 37-2-403. Attached to their motion was a copy of a drafted permanency plan that indicated that placing the child with Intervening Relatives was the goal.

On April 4, 2014, Mark V. and Foster Mother (together, "Foster Parents") filed a motion to intervene. Foster Parents alleged that they were the current foster parents to the child and that the child had been placed with them since September 2012, a period of over eighteen months. Foster Parents filed their motion to intervene in order to respond in opposition to Intervening Relatives' motion concerning the alteration of the goal in the child's permanency plan. According to Foster Parents, they wished to adopt the child and had been recently informed that DCS would support their request.

On June 6, 2014, the child's guardian ad litem filed a response to Intervening Relatives' motion. The child's guardian ad litem generally supported Intervening Relatives' requests and argued that DCS was required to place the child with relatives. Further, the guardian ad litem argued that DCS failed to make reasonable efforts to reunify the child and Mother.

DCS likewise filed a response to Intervening Relatives' motion on June 23, 2014. DCS did not dispute that Intervening Relatives had involvement with the child and his plan of care or that they undertook to become foster parents for the child. However, DCS argued that it had no duty to ensure a relative placement for the child after the child had already been in foster care for nine months at the time Intervening Relatives came forward to care for the child. Further, DCS denied that the change in the permanency plan violated Tennessee Code Annotated Section 37-2-403. DCS also argued that the permanency plan attached to Intervening Relatives' motion was not binding, as it had never been ratified by the juvenile court. Finally, DCS argued that because Intervening Relatives were not parties to the juvenile court proceedings, "it is too late for Intervening Relatives to intervene . . . at this stage in the proceedings."

Also on June 23, 2014, DCS filed a response to the Foster Parents' motion to intervene, generally agreeing that Foster Parents should be allowed to intervene as pre-adoptive parents. On June 26, 2014, Mother filed a response to Intervening Relatives' motion to intervene, generally agreeing with the allegations contained in Intervening Relatives' motion. Specifically, Mother alleged that she had no notice that the permanency plan goal would be changed at the September 23, 2013, hearing. Accordingly, Mother asked that the circuit court stay the order of the juvenile court and restore the goal of relative placement to the child's permanency plan. Finally, on June 27, 2014, Mother filed a response in opposition to the Foster Parents' motion to intervene.

The circuit court granted the Intervening Relatives' motion to intervene on August 11, 2014. Foster Parents were also permitted to intervene by order of August 14, 2014. On August 13, 2014, Intervening Relatives filed an amended motion for stay of the magistrate's ruling regarding the permanency plan. In addition to their prior arguments, Intervening Relatives also argued that the Special Judge presiding over the rehearing lacked subject matter jurisdiction over the claim because he was not properly appointed to preside over the case.

The circuit court conducted a de novo hearing on DCS's petition to adjudicate the child dependent and neglected and a victim of severe abuse on August 14, 2014. At trial, Tanisha Harper, an investigator for DCS, testified regarding how the child first came into DCS custody. According to Ms. Harper, on Tuesday, September 4, 2012, DCS received a referral that the child was the victim of severe physical abuse and that the child was currently admitted to LeBonheur. Ms. Harper was assigned to investigate the allegations. Accordingly, she arrived at LeBonheur and spoke with the child's maternal grandmother, who was staying with the child. Mother was not present at the hospital at that time, but instead had returned to her home with crime scene police officers.

According to Ms. Harper, upon arriving at LeBonheur, she learned that the child had severe physical injuries, including a subdural hematoma, bilateral retinal hemorrhages, and a liver laceration. Ms. Harper took photographs of the child, which were admitted into evidence over Mother's objection. Ms. Harper then interviewed the maternal grandmother, [10]who informed her that the child, Mother, and maternal grandmother attended a well-being check up with his pediatrician on the Friday before his injuries were discovered. According to maternal grandmother, no issues were observed by the pediatrician. Thereafter, maternal grandmother informed Ms. Harper that Mother and the child stayed with maternal grandmother from Friday night until Sunday evening. Ms. Harper testified, however, that Mother later informed her that she and the child only stayed with maternal grandmother until Saturday evening. According to Ms. Harper, regardless of whether the child left on Saturday or Sunday, there was no evidence regarding any traumatic event that occurred while at maternal ...

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