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In re Domingo W.

Court of Appeals of Tennessee, Jackson

July 23, 2015

IN RE DOMINGO W., ET AL.

Session June 09, 2015.

Appeal from the Chancery Court for Shelby County No. CH1301991 Walter L. Evans, Chancellor.

Shantell S. Suttle, Cordova, Tennessee, for the appellant, Samantha W.

Herbert H. Slatery, III, Attorney General and Reporter; Paul Jordan Scott, 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., and Brandon O. Gibson, J., joined.

OPINION

J. STEVEN STAFFORD, JUDGE.

Background

Samantha W.[1] ("Mother") is the mother to two children, Jamarcus W. and Domingo W.[2] Jamarcus was born to Mother in February 2009. Domingo was born to Mother in September 2011.[3] At the time of trial in this matter, Jamarcus was five years old, and Domingo was two years old.

Mother has a lengthy history with the Tennessee Department of Children's Services ("DCS") and foster care. Due to abandonment by her own mother and relatives, Mother herself most recently entered DCS custody on March 29, 2011 at age seventeen while pregnant with Domingo. At this time, Mother's only child was then two-year-old Jamarcus, who also entered DCS's custody via a voluntary placement agreement in which Mother relinquished legal custody. While in DCS's legal custody, both Mother and Jamarcus resided with Vonetta J. ("Foster Mother") and Greg J. ("Foster Father, " collectively, "Foster Parents").[4]

Throughout the next several months, Mother underwent a series of assessments, counseling sessions, and medical appointments facilitated by DCS.[5] During May and June 2011, Mother was admitted to participate in individualized counseling at Youth Villages. Her counseling sought to address her problems with "anger management, defiant behaviors, inappropriate sexual behaviors, physical aggression, truancy, verbal aggression, and low parenting skills." For example, in one assessment, Youth Villages noted that Mother often threatened to hit Jamarcus when he did not comply with her directions.

In addition, Mother was admitted to Saint Francis Hospital in August 2011 when she was eight months pregnant with Domingo. She presented with depression and suicidal ideation after threatening to kill herself. Mother was diagnosed with several disorders, including "Depressive Disorder[], ADHD, Conduct Disorder – Adolescent Onset, " and was subsequently discharged after ten days.

In August 2011, Mother participated in two additional psychological evaluations. The first evaluation occurred at the Center of Excellence at the University of Tennessee Health Sciences Center ("UTHSC"). This psycho-educational evaluation determined that Mother had a mild intellectual disability, and her functioning, judgment, and decision making skills were similar to that of an eight- to ten-year-old child. A second evaluation by UTHSC, a psychiatric evaluation, determined that Mother was a "young woman who has lived a 'chaotic, unstable, neglectful' life which has resulted in 'difficulty with impulse control, judgment, and keeping herself and her children safe.'" Ultimately, the evaluator found that Mother would be unable to gain significant parenting abilities even with support.

Subsequently, Mother, still a minor, gave birth to Domingo while residing with Foster Parents. In September 2011, several days after Domingo's birth, Magistrate David Ferguson of the Shelby County Juvenile Court signed a Protective Custody Order removing both children from Mother's custody. The Protective Custody Order provided that both a DCS case manager and Foster Parents witnessed Mother inappropriately disciplining Jamarcus. Further, the order provided that the case manager and Foster Parents attempted to address these issues with Mother, but the behaviors continued. Specifically, according to the order, Mother became angry with Foster Parents and pushed Jamarcus to the floor, resulting in a knot on the back of his head. The order also made note of Mother's admittance to Saint Francis hospital stemming from her threats to commit suicide and also kill her then-unborn child, Domingo. Although the precise dates are unclear from the record, it appears that DCS continued providing services to Mother at the time her children entered temporary DCS custody.

In support of the protective custody order, the juvenile court also discussed the intellectual and adaptive functioning evaluations performed on Mother by UTHSC in August 2011. According to the protective custody order, the findings produced by the evaluation showed that Mother's "mildly delayed cognitive functioning and low adaptive skills support a diagnosis of intellectual disability, mild. . . . Without a great deal of permanent support and supervision, [Mother] will not be able to adequately care for her older child or her newborn baby." Further, the magistrate's order provides that Mother's judgment, planning, and decision-making skills were that of an eight- to ten-year-old child according to her evaluation. Accordingly, temporary legal custody of Jamarcus and Domingo was awarded to DCS. Despite the alteration of custody, it appears that DCS continued to provide Mother with various services related to guidance on parenting, individual counseling, and the facilitation of regular visitation.

Mother turned eighteen years old in October 2011, which would typically cause her to "age out" of foster care. However, DCS was working with Mother to get into an assistance program administered by the Department of Intellectual and Developmental Disabilities ("DIDD"). Because DCS was still providing continuing assistance to Mother, she was permitted to reside with Foster Parents in an "extension of foster care." Mother did so until December 2011 when she opted out of the extension. At this time, she told DCS that she was moving in with her thirty-eight-year old boyfriend, the father of Domingo.

Around this time, Mother participated in a Health Connect Parenting Assessment provided by DCS, although the date is unclear from the record. At the time of this assessment, Mother was eighteen years old, had stopped living with Foster Parents, and had moved in with her boyfriend. The evaluator noted that Mother was able to verbally express how to properly care for the children. However, the evaluator noted that Mother did not invite her into the apartment, nor did Mother appear to have access to a car seat for the children.[6] The evaluator was ultimately unable to complete the evaluation because she was unable to contact Mother to presumably arrange another meeting. She did conclude, however, that she had concerns with Mother's living situation as well as about her ability to effectively parent the children.

When Mother moved out of her boyfriend's home approximately three weeks after moving in, she decided she wanted to opt back into an extension of foster care, which DCS permitted. She also expressed a desire to attempt to get into the DIDD program again. At this time, Mother was placed with another foster family, the B. family. However, yet again, she later opted out of the extension of foster care. In January 2012, she contacted DCS again and informed them that she was homeless. DCS contacted DIDD and "told them her situation was critical." Mother was subsequently accepted into DIDD, which helped Mother obtain housing in Jackson, Tennessee.[7] Unfortunately, one of the requirements for Mother's current housing is that her children cannot reside with her. In addition, DIDD assisted Mother with obtaining a conservator to manage her financial affairs.

Although still maintaining contact with Mother, DCS filed a petition to adjudicate the children as dependent and neglected at some point, and the petition was heard on May 18, 2012. Shelby County Juvenile Court Judge Curtis S. Person found the children dependent and neglected. In the order dated May 18, 2012, the juvenile court noted that "Mother's current housing situation prevents her from having custody of her children and that the children are dependent and neglected as her current residence is unavailable to them." In addition, the order provides that it was reasonable for DCS not to make efforts "to maintain the children in the home due to allegations of environmental neglect."

On February 12, 2013, DCS filed a Petition for Termination of Parental Rights in Shelby County Chancery Court.[8] As grounds for termination, DCS alleged that (1) Mother was incompetent to care for and supervise the children and (2) the conditions that warranted removal of the children persisted and would unlikely be remedied in the near future. DCS also averred that it was in the children's best interest that Mother's parental rights be terminated.

A bench trial was held on July 8 and 9, 2014. Several witnesses testified: Dr. Mindy Kronenberg, a clinical psychologist; Sharron Nabors, a DCS family service worker; Leuren Miller, a family care counselor at Youth Villages; Foster Mother; and Mother.

Dr. Kronenberg testified first. She testified that, in her expert opinion, Mother was mentally incompetent with regard to parenting her two children. Dr. Kronenberg met with Mother on several occasions spanning nearly eight hours. Dr. Kronenberg admitted that she had not examined Mother in approximately two years but opined that this passage of time only equated with the children developing a stronger attachment to Foster Parents. She stated that Mother "clearly loves her children" but that she did not have the ability to understand their perspective. For example, when one of the children began crying during a session with Dr. Kronenberg, Mother became upset with her inability to console the child and relinquished care back to Foster Mother, who was also present. To Dr. Kronenberg, Mother's inability to understand the children's perspective "impedes attachment" and can be associated with abuse and neglect.

Dr. Kronenberg also testified about Mother's Intelligence Quotient ("IQ"). Mother's IQ was measured as 58, which is in the "mild intellectually deficient range." Further, Mother also tested low on an adaptive functioning test. Coupled together, the results of these two scores demonstrate that Mother possesses the judgment of an eight- to ten-year-old child. Dr. Kronenberg noted, however, that Mother's judgment often varied depending on the situation she was in. Still, she testified that a low or deficient IQ does not equate with an inability to parent because, for example, it can be associated with a lack of education or otherwise biased. She explained that many people with a low IQ can parent their children; however, Dr. Kronenberg opined that Mother was not competent to parent her children based on both her low IQ and her low adaptive functioning score. To this end, Mother displayed an inability to motivate herself independently, empathize with her children, and develop a parent-child relationship. Ultimately, Dr. Kronenberg stated that, "I do not believe [Mother] can take care of them. I do believe she loves them. I don't think she has the functional abilities to take care of the children." Dr. Kronenberg's Psychological Evaluation of Mother, which was completed at the request of DCS, was admitted as an exhibit at trial. Ultimately, from her assessment of Mother, Dr. Kronenberg opined that Mother has made improvements and would continue to improve in "concrete areas, " but Mother is incompetent as far as "abstract thinking . . . understanding other people's feelings, which leads to helping children understand their own feelings, which leads them to develop a sense of whole self." In addition to opining that Mother was incompetent as far as caring for her children, she also stated that it was in the children's best interest to be adopted by Foster Parents.[9]

Sharron Nabors, a DCS family service worker, testified next. She became involved with Jamarcus in March 2011 after allegations of abuse by Mother, and she became involved with Domingo when he was born in September 2011. Ms. Nabors testified about the efforts DCS expended in order to reunify Mother with the children, including various assessments, parenting classes, individual counseling, and regular visitation with the children. DCS also assisted Mother with applying for Social Security, which was a requirement for admittance to DIDD. DCS further assisted Mother with obtaining housing in Jackson, Tennessee, through DIDD. Ms. Nabors explained Mother's placement and the services DIDD provided thusly:

They are based on their IQ. If their IQ is a certain thing, and they require assistance in day-to-day living or assistance with that, then they can go into that program. It's a lifelong program. They are in the program for forever until they no longer want to be in the program, but they assist them with housing and to care for - - pay their bills, take care of themselves, education, medication, pretty much anything they need help with.

She confirmed that Mother was not allowed to have her children with her while placed in this program, and she stated that Mother was aware of this prohibition. Through DIDD, Ms. Nabors explained, Mother was appointed a conservator "because of the irrational decisionmaking she was doing." Further, according to Ms. Nabors, Mother would not have been able to support herself without DCS's assistance.

Ms. Nabors also testified about her observations of Mother's relationship with the children. She stated that Mother often lost her temper and became easily frustrated, and "[s]he is easily frustrated because she can't deal with them both at the same time." Mother often responded by screaming at the children, or "she will just say forget it, " according to Ms. Nabors. Ultimately, Ms. Nabors testified that the conditions regarding Mother's temper and her inability to appropriately control and supervise the children would not be remedied in the near future so as to return the children to her home safely.

Ms. Nabors also testified about Mother's education, which ended at the eighth grade.[10] She explained that Mother's biological mother had taken her out of school for some reason and failed to reenroll her. When Mother came into DCS custody as a teenager, [11] DCS attempted to enroll her in school and took Mother to the truancy office. Mother became upset with the truancy officer and "said a few things, " and the truancy officer denied her readmission into the school system. Mother was then referred to a GED program but could not enroll because she scored poorly on the literacy part of the pre-test to qualify for placement in the program. Ms. Nabors testified that during DCS's attempt to enroll Mother in the GED program, there was also a program offered "to try to help her improve her reading, . . . to try to get to a level where she could do GED classes." Ms. Nabors testified, however, that Mother "did not participate" in these classes.[12] Ms. Nabors explained that several things contributed to Mother and DCS's inability to follow through with any sort of continuation of Mother's education, including Mother's frequent "disruptions" of her foster care placement, her pregnancy, the birth of Domingo, her mental instability, and her resulting ten-day stay at Saint Francis Hospital.

Turning to the children's foster care placement, Ms. Nabors testified that the children are doing extremely well in their care. She explained that Jamarcus had some anger and behavioral issues when he was first placed, but he has been "mannerable, sweet, making progress in school" since being placed with Foster Parents. Jamarcus also looks to Foster Parents as his parents and their biological daughter as his sister. Similarly, Foster Parents are the only parents Domingo has ever known as he has resided with them since birth. Although somewhat confusing, Ms. Nabors's testimony indicates that both children refer to Mother and ...


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