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In re Tamera W.

Court of Appeals of Tennessee, Jackson

November 10, 2016

IN RE TAMERA W., ET AL.

          Session Date: October 25, 2016

         Appeal from the Circuit Court for Shelby County No. CT-001361-14 Gina C. Higgins, Judge

         Mother and Father appeal from the trial court‘s finding that clear and convincing evidence exists to establish that the children at issue are dependent and neglected and the victims of severe abuse at both parents‘ hands. Discerning no error, we affirm.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          Theresa D. Childress, Memphis, Tennessee, for the appellant, Lawanda K.

          Dennis J. Sossaman, Memphis, Tennessee, for the appellant, Larry K. Elizabeth W. Fyke, Memphis, Tennessee, Guardian ad Litem. [1]

          Herbert H. Slatery, III, Attorney General and Reporter; M. Cameron Himes, 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 and Brandon O. Gibson, JJ., joined.

          OPINION

          J. STEVEN STAFFORD, JUDGE

         Background

         On October 26, 2012, Petitioner/Appellee the Tennessee Department of Children's Services ("DCS") filed a petition to adjudicate seven children dependent and neglected: Tamera W., born in 1999, Akila E.W., born in 2001, Lajerrica S.W., born in 2002, Quentell D.W., born in 2003, Jereka S.W., born in 2005, Alaysha M.W., born in 2006, and Lariyana T.K., born in 2011.[2] The petition alleged that on October 18, 2012, DCS received a referral regarding physical abuse of Alaysha by her mother, Respondent/Appellant Lawanda K. ("Mother"). The investigation revealed that three of the children had bruises, lacerations, and red marks on their backs, legs, and buttocks. The children informed the DCS investigator that the marks were the result of a punishment the night before, in which Mother whipped each child with an extension cord, while the children's hands, mouths, and eyes were covered in duct tape. The petition alleged that the children were the victims of severe abuse by Mother. In addition, the petition alleged that Mother's husband and father of three of the children, Respondent/Appellant Larry K. ("Father"), also committed severe abuse by knowingly failing to protect the children.[3]

         A juvenile magistrate held a preliminary hearing on the petition on October 30, 2012. Father was present for the hearing; Mother was not present for the hearing because she was incarcerated. On November 8, 2012, a juvenile magistrate entered an order containing its findings and recommendations. Therein, the juvenile magistrate noted that Mother and Father waived their right to a preliminary hearing, that DCS was "reasonable not to make efforts to maintain the children in the home, " and that there was no less drastic alternative than placing the children in DCS custody. The children were therefore placed in DCS custody, and Mother and Father were granted supervised visitation. DCS was ordered to provide anger management and parenting classes to Mother and Father, which they were ordered to complete.

         During the pendency of the proceedings in the juvenile court, the juvenile court entered several permanency plans concerning the children; eventually, the goal of the permanency plans was changed from return to parent to adoption.

         In the meantime, on September 13, 2013, a juvenile magistrate held a hearing on DCS's dependency and neglect petition. The juvenile magistrate issued a written ruling finding that the petition be sustained, that the children be found dependent and neglected, and that the children were the victims of severe abuse. Given the allegations of physical abuse, the magistrate further found that it was reasonable for DCS not to make efforts toward reunification. The magistrate's findings and recommendations were adopted, ratified, and confirmed as the order of the juvenile court on the same day as the hearing. A written order was thereafter entered sustaining the dependency and neglect petition on November 5, 2013.

         Mother and Father filed petitions for rehearing before the juvenile court judge. A hearing was held on March 10, 2014, Substitute Judge Dan H. Michael presiding. The juvenile court entered an order on March 24, 2014: (1) dismissing Father's petition for re-hearing because he did not appear for court; (2) allowing Mother's request for rehearing; and (3) again sustaining DCS's dependency and neglect petition. In its order, the juvenile court found clear and convincing evidence that the children were dependent and neglected based upon the children's interviews with DCS investigator Tanisha Harper. According to the juvenile court, each of the children separately recounted similar allegations of physical abuse at the hands of Mother. The juvenile court therefore found that Mother had perpetrated severe abuse against four of the children, Alaysha, Quentell, Jereka, and Lajerrica. As a result of what the juvenile court deemed to be the "torture" of the children, the juvenile court ordered that the children remain in DCS custody, that DCS was relieved of making reasonable efforts toward reunification of the family, and that Mother and Father would have no contact of any kind with the children.

         Mother and Father thereafter timely appealed to the Shelby County Circuit Court ("trial court"). The trial court heard the de novo appeal on March 10, March 11, and July 8, 2015. Ms. Harper testified about her interviews with Alaysha, Quentell, Jereka, Lajerrica, Tamera, and Akila. The interviews took place first individually and then as a group. During these interviews, several of the children stated that they were whipped on October 17, 2012, or had been in the past. According to the children, Mother would make the children squat with their faces against the wall and hands above their heads, sometimes holding this position for hours while holding books over their head, lead the children one by one into her bedroom, make them remove their clothes, duct tape their mouth, wrist, and eyes, and then proceed to whip them. The children explained that Mother initially used a belt for this "discipline" but that she had switched to an extension cord because the belt was not painful enough. One child explained that Mother made abuse an "everyday" occurrence and that if one child got in trouble, Mother would whip all of them. Other forms of punishment included making six children split a can of carrots and removing their beds so that they would have to sleep on the cold floor. Ms. Harper took photographs of the injuries to Alaysha, Quentell, Jereka, and Lajerrica, which showed extensive bruising, red marks, scratches, and lacerations. For example, a photograph of Alaysha's back showed two red marks consistent with the size of an electrical cord covering nearly the length of her back. Likewise, photographs of Quentell showed multiple lacerations and scratches on his backside and legs. According to Ms. Harper, while not all of the children had fresh marks of abuse, some exhibited older marks suggesting that they had been "whipped . . . with extension cords in the past."

         The children informed Ms. Harper that Father was aware of the abuse by Mother because he was in the home when the abuse occurred. Father would also sometimes participate in the discipline, but the children indicated that he only ever used a belt, never an extension cord. The children stated that sometimes during Mother's "discipline" of the children, Father would leave the house to go out to his car and smoke. According to the children, Father once told Mother that she should not whip the children in such a manner but that Mother responded that she could discipline the children as she saw fit.

         Ms. Harper finally testified that the family had been the center of eight prior DCS investigations, the majority of which concerned allegations of physical abuse. At one point, the children were placed into foster care for a year while Mother was required to attend counseling. According to Ms. Harper, as a result of these investigations, Mother was informed as to what DCS considered appropriate discipline of the children, and Mother indicated to DCS that she was aware of what discipline was appropriate. Ms. Harper finally testified that based upon the injuries to the children, in the estimation of DCS, Mother's actions in whipping the children in this case constituted severe abuse and neglect. Other than Lariyana, the children were also called into court to give their statements concerning the abuse and their desired outcomes for the case.[4]

         DCS social worker Letina Pruitt testified about her interactions with the family after the children were removed from Mother's custody. According to Ms. Pruitt, while the children still have some emotional and behavioral issues, they have generally improved since their removal from Mother's and Father's custody. Ms. Pruitt testified that several of the children are medicated for attention deficit and other disorders. In addition, Ms. Pruitt testified that Quentell was required to be hospitalized for mental health issues for a period of time but that he appears to improving now that he is medicated. Ms. Pruitt stated that Mother had initially complied with the permanency plans put in place by the juvenile court but that Mother refused to comply after the goal of the permanency plans was changed to adoption. Ms. Pruitt admitted, however, that Mother had completed a mental health assessment and an anger management program, as required by the permanency plans.

         Mother admitted to whipping the children with a belt and making them squat in the hallway as a form of punishment. Still, Mother denied ever using an extension cord or duct tape on the children, as well as forcing the children to sleep on the floor or denying them food. Mother contended that the children lied about the abuse because they are manipulative and have a history of lying and stealing. Mother admitted, however, that it was her "discipline" that caused the marks depicted in the photographs taken by Ms. Harper in October 2012. According to Mother, she was required to discipline the children due to their many behavior problems. Despite this contention, Mother denied that any of the children required medication because the "children never displayed that type of behavior at home." Instead, Mother contended that the children's behavioral issues after being taken into DCS custody resulted solely from their need to return to her care. Mother admitted, however, that the "discipline" she administered to the children in October 2012 was not appropriate and testified that she would no longer physically discipline the children should they be returned to her home. According to Mother, she had learned to discipline the children in other ways, such as removing video game privileges. As a result of the alleged abuse, Mother testified that she pleaded guilty to four counts of aggravated child assault, for which she had received judicial diversion.[5]

         Mother also stated her belief that she had substantially complied with the requirements under the various permanency plans put in place by the juvenile court, including the completion of psychological evaluations on May 17, 2013, and May 1, 2015, with Dr. Kenneth Jones, a licensed clinical psychologist. Both Dr. Jones's deposition and the reports from the psychological evaluations were submitted into evidence. According to the 2013 evaluation report, Mother has a tendency to repress or deny problems. As such, the report noted that should DCS determine that reunification was possible, Dr. Jones strongly recommended ongoing family therapy, individual treatment, and medication. The report finally noted that Mother's issues "make it very difficult for her to act efficiently as a mother of minor children." When Mother was reevaluated in 2015, however, Mother indicated that she was not pursuing any individual counseling. In addition, Dr. Jones noted "noticeable inconsistencies" between Mother's reports of her participation in services and the reports from DCS and Mother's former clinical therapist. Accordingly, Dr. Jones made the following recommendations:

1. Given the severity of the allegations, including significant physical and emotional abuse of the minor children, and the apparent disconnect between the comments of the family service worker's notes compared to those of [Mother's] clinical therapist, it is strongly recommended that additional investigation of the historical accuracy of the provided information be determined prior to the reunifying of the family unit.
2. Based on [Mother's] report of her lack of psychological therapy in the wake of the allegations, and a reported non-involvement in accountability or counseling that could be producing improvement in [Mother's] overall ability to deal with stress appropriately, and develop effective communication and parenting skills, it is strongly recommended that individual counseling commence and continue immediately. It is also recommended that, when [Mother's] counselor deems her ready, family counseling sessions begin prior to reunification, so that communication and effective problem solving skills can be learned, practiced, and established.

         Finally, in accordance with his evaluation of Father, discussed in detail infra, Dr. Jones recommended that the children not be returned to the home so long as Father is present until Father had completed six months of successful treatment.

         Father contended that he only saw Mother discipline the children by making them squat and that he never whipped them. Father also testified he never saw Mother discipline the children because she would take them into a room and he would usually be outside. According to Father, he was diagnosed with bipolar disorder and schizophrenia in 2008. At the time of trial, Father revealed that he had not taken his medication as prescribed for several days and that he ...


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