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In re Jude D.

Court of Appeals of Tennessee, Knoxville

November 30, 2016

In re JUDE D.

          Assigned on Briefs September 2, 2016

         Appeal from the Circuit Court for Hamilton County No. 13A194 L. Marie Williams, Judge

         This is a termination of parental rights case involving Jude D., who was age five at the time of trial. The mother, Carla D. ("Mother"), and the father, Julius D. ("Father"), have three children currently involved in termination actions: Chance D., Gabriella D., and Jude D. (collectively, "the Children"). Mother and Father have an extensive history with child welfare agencies and the courts in both Tennessee and Georgia.[1] In March 2012, the Hamilton County Juvenile Court ("juvenile court") granted temporary legal custody of the Children to the Tennessee Department of Children's Services ("DCS"). Upon their placement in DCS custody, the Children were placed in the home of Karen P. and Thomas S. (collectively, "Foster Parents").[2] DCS did not seek a finding of severe child abuse against Mother in the dependency and neglect action in juvenile court. Foster Parents filed a petition to terminate the parental rights of Mother and to adopt Jude D. ("Jude") in the Hamilton County Circuit Court ("trial court") on July 31, 2013. Foster Parents concomitantly filed separate termination of parental rights actions involving Jude's two siblings, Gabriella D. ("Gabriella") and Chance D. ("Chance"). Following a bench trial, the trial court found by clear and convincing evidence that Mother had committed severe child abuse against Chance while he was in her custody. The trial court recognized that the determination of severe child abuse against Chance was a ground for termination of Mother's parental rights to Jude. The trial court also found, however, that Foster Parents had not proven by clear and convincing evidence that the conditions leading to the removal of the Children persisted or that termination of Mother's parental rights was in Jude's best interest.[3] The trial court thereby denied the petition to terminate Mother's parental rights to Jude. Foster Parents have appealed. We affirm the trial court's finding that the statutory ground of severe child abuse was proven by clear and convincing evidence. However, having determined that Foster Parents also proved by clear and convincing evidence that termination of Mother's parental rights was in the best interest of Jude, we reverse the trial court's denial of the termination petition. We therefore grant Foster Parents' petition for termination of Mother's parental rights to Jude. We remand this matter to the trial court for an adjudication regarding Foster Parents' petition for adoption.

          Susanne Lodico, Chattanooga, Tennessee, for the appellants, Karen P. and Thomas S. Rachel M. Wright, Hixson, Tennessee, for the appellee, Carla D.

          Herbert H. Slatery, III, Attorney General and Reporter, and Rachel E. Buckley, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services.

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which Andy D. Bennett, J., joined. J. Steven Stafford, P.J., W.S., filed a separate opinion, concurring in part and dissenting in part.



         I. Factual and Procedural Background

         This action commenced when Foster Parents filed a petition on July 31, 2013, seeking to terminate Mother's parental rights to Jude and to adopt him.[4] As statutory grounds, Foster Parents alleged that the conditions leading to the removal of the Children persisted and that Mother committed severe child abuse against Chance due to his severe malnutrition at the time of the removal. Foster Parents further alleged that the termination of Mother's parental rights was in the best interest of Jude. Mother subsequently filed an answer to the petition, requesting that the trial court find that grounds did not exist to terminate Mother's parental rights and that termination of Mother's parental rights to Jude was not in Jude's best interest. DCS also filed an answer, requesting that Foster Parents' petition be dismissed. A trial was conducted on September 8-10, 2015.

         Prior to this termination action, Mother had an extensive history with law enforcement and the child welfare agencies in both Georgia and Tennessee. Foster Parents subpoenaed records from the Georgia Division of Family and Children Services ("GDFCS"), and these documents were admitted as exhibits at trial. The records demonstrate that in May 2005, GDFCS opened a case involving this family upon a referral of emotional and psychological neglect due to domestic violence in the home. According to the GDFCS records, that case was "substantiated" and closed in June 2005. In February 2006, GDFCS removed Mother's two oldest children, H.F. and W.F., from the parents' custody after Mother and Father were involved in an automobile accident while they were intoxicated with H.F. in the vehicle.[5] Both parents and H.F. were transported to the hospital. Hospital personnel would not release H.F. to the parents because of concern regarding the parents' ability to care for H.F. due to the parents' intoxication. According to records from Georgia, the parents tested positive for marijuana, benzodiazepines, and methadone at the hospital and had to be shaken in order to elicit a response.

         Following this incident, both H.F. and W.F. were removed from the parents' home and placed into state custody in Georgia. At the time of removal, the younger child, W.F., was less than one month old. According to GDFCS records, W.F. was experiencing withdrawal symptoms and presented with a severe case of thrush when he was placed into state custody.[6] The parents did not comply with the case plan developed by GDFCS and continued to abuse drugs. On September 11, 2007, Mother's and Father's parental rights to those two children were terminated by the Juvenile Court of Catoosa County, Georgia ("the Georgia court"). In the final order terminating parental rights, the Georgia court found as follows:

The Court has previously found a cause of deprivation of substance abuse by the parents. Neither parent has provided six consecutive months [of] negative drug screens nor have they completed a substance abuse treatment program. The father has failed to complete anger management counseling. The parents have failed for greater than one year to complete a case plan designed for the reunification of the children with the parents. The parents suffer from mental illness rendering them incapable of properly parenting the children and have failed to seek appropriate mental health treatment. The parents have physically, mentally and emotionally neglected the children and have failed to protect the children from the maternal grandmother who has a criminal history. The parents have failed for greater than one year to maintain a meaningful and supportive parental bond with the children. The parents have failed to support the children.

         Based upon those facts, the Georgia court terminated Mother's and Father's parental rights to H.F. and W.F.

         Shortly thereafter, Mother gave birth to Gabriella in March 2008, while residing in Georgia. After Gabriella's birth, GDFCS received a referral due to Mother's past drug use. Consequently, GDFCS petitioned the Georgia court for court-ordered drug screens and cooperation from the parents with the investigation. On June 26, 2008, GDFCS received another referral, alleging that the parents were smoking marijuana in the presence of Gabriella and that they were abusing prescription medication. While law enforcement was in the home, officers observed Father to be under the influence while caring for Gabriella. At that time, Father was holding Gabriella and attempting to place her into a bouncy seat on the floor. Father dropped Gabriella, causing her to hit her head on the plastic seat. Additionally, police officers found drug paraphernalia in the home, and a count of Mother's prescription medication indicated fewer pills remaining than there would have been if the medication had been taken as directed. At that time, Gabriella was placed into state custody in Georgia. Mother filed a petition for a protective order against Father in Georgia on July 22, 2008. In June and September 2008, Mother indicated that she planned to divorce Father.

         Eventually, Mother did comply with a GDFCS case plan, and the Georgia court restored custody of Gabriella to Mother on February 2, 2009. The court thereupon ordered that "[M]other shall ensure that the father shall have no contact with the child [Gabriella]." The Georgia court also ordered GDFCS to provide "aftercare" for Mother and Gabriella for thirty days following entry of the order.

         During her testimony at trial in this action, Mother acknowledged that she immediately resumed her relationship with Father upon regaining custody of Gabriella. She became pregnant with Jude shortly thereafter. Mother admitted that she reunited with Father despite her knowledge of the Georgia court's no-contact order. Mother further testified that she immediately recommenced her drug use when she resumed her relationship with Father.

         At some point, Mother and Father moved to Tennessee.[7] Jude was born to Mother and Father in December 2009, approximately ten months after Mother regained custody of Gabriella through the Georgia court. Mother testified that Jude was born drug- addicted. DCS received a referral due to Jude's drug addiction at the time of his birth. While neither Jude nor Gabriella were removed from Mother's care at that time, DCS required Mother to complete an alcohol and drug assessment, which task she accomplished.

         On May 12, 2010, Mother was at work when an unrelated child died in the parents' home while in Father's care. Upon returning home from work, Mother discovered Father intoxicated and passed out on the floor. In June 2010, DCS received a new referral and was advised of the Georgia court's no-contact order prohibiting any contact between Gabriella and Father. Contemporaneously, Mother failed a drug screen. At trial in the instant action, Mother admitted that she had been using drugs at that time. Consequently, the juvenile court entered an order placing Gabriella and Jude into state custody in Tennessee. Jude and Gabriella were released back to Mother's custody three days later. DCS thereafter developed a non-custodial permanency plan requiring Mother to cease her drug use and keep Gabriella and Jude away from Father until Father received treatment for his drug use. Mother passed three drug screens and informed DCS that Father realized he could not return to the home until he addressed his drug issues. DCS then closed its case on August 20, 2010, with Jude and Gabriella remaining in Mother's custody.

         In September 2011, Chance was born to Mother and Father. At birth, Chance weighed six pounds, fourteen ounces. Six months after his birth, Chance weighed a mere seven pounds, six ounces, having gained only eight ounces. Mother conceded that she knew it was not appropriate for Chance to gain half a pound in six months. According to Mother, she did not seek medical care for Chance because she was afraid DCS would become involved and the Children would be removed from her. Finally, on March 5, 2012, Father took Chance to a physician. Chance was immediately transported to the emergency room at a local hospital where he remained for four days. The Children were then removed from the parents' custody and ordered into the custody of DCS by the juvenile court. The juvenile court later adjudicated the Children as dependent and neglected and ordered that they remain in foster care.

         Mother explained at trial that during the first six months of Chance's life, she was feeding Chance six to eight ounces of formula six to eight times per day with some baby cereal. She further indicated that Chance was not spitting up more than a normal baby and that he did not experience excessive diarrhea. According to Mother, she was not working outside the home during those months and was the person responsible for feeding Chance.

         Meanwhile, Ed Merritt, a detective with the Hamilton County Sheriff's Department, investigated child abuse allegations regarding Chance. In the course of his investigation, Detective Merritt observed Chance in the hospital and described his emaciated condition. At the conclusion of the investigation, a Hamilton County grand jury indicted Mother on the charge of aggravated child abuse.

         At trial, Karen P. ("Foster Mother") described the Children's conditions when they initially arrived at her home. Foster Mother testified that Gabriella was nearly four years of age when she came to the foster home, and she was not able to recite her alphabet, count to ten, or spell her name. According to Foster Mother, Gabriella also used inappropriate language upon her initial arrival. She further explained that Gabriella and Jude were infested with lice, which required a prescription for treatment. Additionally, Gabriella and Jude had not received proper vaccinations. According to Foster Mother, Jude and Gabriella "were so far behind[, ] . . . they couldn't be given all of [the vaccinations] at one time." Foster Mother also explained that Jude would chew food and keep it in his cheeks upon his arrival at the foster home. Chance, still hospitalized when Gabriella and Jude first came to Foster Parents' home, resembled "a newborn." Foster Mother explained that Chance had a large head, distended belly, and legs like "tiny sticks." She further described Chance as appearing emaciated; unable to hold up his head; and maintaining a consistent, unresponsive, blank stare.

         Foster Mother spoke of Mother's appearance at a medical appointment for Jude as "kind of out of it, slurring her words, [and] not steady on her feet." She also opined that Mother "appeared as if she was on some sort of narcotic." According to Foster Mother, during the medical appointment at which Jude's motor skills and cognitive skills were tested, the nurse asked whether Jude had any relevant medical history. Mother responded that he had no medical issues. Foster Mother testified that she was concerned that Mother's omission could affect Jude's medical treatment and informed the nurse that Jude was born addicted to drugs. As Foster Mother related, Mother brought a photograph album for the Children to view, which included a photograph depicting Father appearing to hold a "joint." The album also contained a photograph of Chance prior to his arrival at the foster home. The photograph corroborates Foster Mother's and Detective Merritt's respective testimonies regarding Chance's emaciated condition.

         Regarding extended visits with Mother, Gabriella initially became upset and did not wish to participate. Foster Mother explained that when the unsupervised visits with Mother were extended, the Children's behaviors regressed to "the old pattern of when [they] first got them." The Children would return to normal, however, after a few days again in the foster home. Expressing concerns about the Children's visits with Mother, Foster Mother stated that the Children were complaining of hunger following one particular visit. On that occasion, Mother had taken the Children for pancakes after picking them up from daycare but did not return them in time for lunch. Upon their return, Mother did not inform the daycare that the Children had not eaten lunch. Foster Mother testified that she was concerned because Mother's neglect in feeding Chance was the reason the Children had been placed into foster care. Foster Mother also expressed concern that during another visit, Mother brought Jude back to daycare with a 104-degree fever but failed to inform the daycare of Jude's condition. According to Foster Mother, the daycare staff observed that Jude did not appear well immediately upon his return from the visit with Mother. The daycare staff thereafter called Foster Parents, who took Jude to a physician. Foster Mother testified that she was concerned because although a 104-degree fever is "excessive and dangerous, " Jude was "just brought back to school" by Mother. Foster Mother further related that Chance returned to the foster home after an overnight visit with Mother with "one of the worst cases of diaper rash that he's had since [they] had custody of him."

         The Children were in the physical custody of Foster Parents for nineteen months. Both Foster Parents testified regarding their substantial efforts during the Children's time in the foster home to overcome the Children's respective developmental delays. Foster Parents became very close to the Children with the Children eventually calling them "mommy" and "daddy." Foster Parents also expressed their love for and desire to adopt the Children.

         Paul Dassow, MD, MSPH, an expert in the field of family medicine and pediatric care, testified regarding Chance's medical condition at approximately six months of age. According to Dr. Dassow, Chance was born in September 2011, weighing six pounds, fourteen ounces. Upon his review of Chance's medical records, Dr. Dassow indicated that on March 5, 2012, Chance was admitted to the hospital weighing only seven pounds, six ounces, and upon admission, an "inital assessment for Chance was 'severe physical neglect resulting in failure to thrive, and some developmental delay.'" In forming his opinion, Dr. Dassow examined the statements Mother provided to medical personnel. According to medical records, Mother informed hospital personnel that she noticed Chance was not growing approximately three months prior to his hospital admission. Mother further reported that Chance drank approximately six ounces of formula with rice cereal every three to four hours and also consumed cereal and baby food with a spoon once per day. Following placement in foster care, Chance gained three pounds in the first month. He subsequently gained another four pounds by May 11, 2012. Thereafter, Chance continued gaining weight and by his last visit, "was a healthy two year old boy, " according to an attending nurse.

         Through his initial affidavit presented to the trial court, Dr. Dassow opined as follows:

In my over twenty years of experience as a Medical Doctor, this is the worst case of failure to thrive and malnutrition in a six-month-old that I have seen or reviewed, including cases in Africa that resulted in infant death. In my review of Chance's records, I am repeatedly shocked by his limited weight gain and I am very surprised that this little boy survived.
Based on my review of the Records, there is no medical reason or explanation for Chance's failure to gain weight other than his parents' failure to feed him appropriately.
Mother's description of Chance's feeding is a medical impossibility based on the number of calories that would have been provided to Chance and the amount of weight he gained, or failed to gain, during the first six months of his life.
It is my opinion that Chance was neglected to the extent that he was likely to suffer serious bodily injury or death. My opinion on this matter is made with more than a reasonable degree of medical certainty and, as I stated earlier, I am very surprised this child survived.
It is my opinion that Mother's failure to seek medical help for her child the moment she realized he was not appropriately gaining weight was neglect that exposed Chance to serious bodily injury and death.
Without examining the child myself and performing certain tests, I cannot reach an opinion as to any persistent developmental delays, intellectual disabilities, and/or impairments that Chance may suffer. It is my opinion, however, to a reasonable degree of medical certainty, that malnutrition can cause developmental delays, intellectual disabilities, and/or impairments, especially when the malnutrition is as severe and as early as Chance's.

(Paragraph numbering omitted.) In a second affidavit by Dr. Dassow, he opined as follows regarding the effect that Chance's severe malnutrition could have on development:

Based on World Health Organization's (WHO) definitions for malnutrition, Chance was well below the 1st percentile for weight at 6 months placing him in an "Acute Severe Malnutrition" status.
Robust data generated by the World Health Organization shows that infants at 6 months of age who are suffering from Acute Severe Malnutrition are at high risk of dying from a variety of causes due to impairment of bodily functions.
Further, I have reviewed research regarding the effects of Acute Severe Malnutrition on infants and, based on the results of my research, I have formed an opinion as to whether or not the malnutrition suffered by Chance D[.] is reasonably expected to result in neurocognitive delay or intellectual disability or any impairment of his ability to function adequately in his environment.
Research published in December of 2014 regarding the Health Related Quality of Life (HRQOL) in school children with a history of early severe malnutrition indicates that these children tend to suffer from long term complications, particularly learning and psychosocial disorders. This particular study compared children, ages 5 to 12, who have a history of early severe malnutrition with their siblings who did not suffer from early severe malnutrition.
Another older study, published in December of 1996, indicates that children who suffered from malnutrition during infancy presented lower scores in memory and problem solving tests than children who did not suffer from malnutrition during infancy. This study concluded that early severe malnutrition had negative effects on basic cognitive function that became apparent during early childhood education. Again, this study compared a group of children who had been severely malnourished with a group of healthy children.
I've also reviewed research that indicates the victims of severe early malnutrition continue to suffer effects into adulthood. Research published in September of 2014 indicates there are long term negative cardiovascular effects from early malnutrition and research published in December of 2014 indicates that early severe malnutrition significantly contributes to dementia later in life.
It is difficult, if not impossible, to determine if a three (3) year old is suffering or will suffer from neurocognitive delay or intellectual disability or any impairment of his ability to function adequately in his environment as a result of severe malnutrition during the first six (6) months of his or her life since effects on memory, problem solving, and psychosocial functioning often will not manifest until the child starts school.
In addition, performing an evaluation on Chance [D.] at this time would be complicated by the fact that there was no baseline neurocognitive evaluation completed at the time of his birth or during the period that he was severely malnourished. Thus, there is no data to use to assess Chance D[.]'s baseline neurocognitive abilities.
It is my opinion, to a high degree of medical certainty, that the severe malnutrition suffered by Chance D[.] during the first six (6) months of his life placed him at high risk for early death and that the degree of malnutrition he endured is reasonably expected to result in neurocognitive delays and disability that will become apparent during his primary schooling.

(Paragraph numbering omitted.) According to Dr. Dassow's testimony at trial, Chance required extensive physical therapy for approximately a year and a half after being discharged from the hospital.

         DCS Family Services Worker Latisha Ball testified that she was assigned to the case from March 2012 until the end of October 2012. After the Children were placed in foster care, DCS developed a permanency plan on March 21, 2012, with a single goal of "Return to Parent."[8] This plan required Mother to (1) ensure that the Children have a safe, stable home; (2) maintain a safe, stable home for the Children for no less than six months; (3) undergo a mental health intake to determine her treatment needs; (4) pay child support; (5) adhere to the supervised visitation plan to visit with the Children; (6) sign releases to allow DCS to obtain information; (7) notify DCS of any change in circumstance; (8) attend medical appointments for the Children and timely seek medical attention for the Children when needed; (9) obtain a legal, verifiable source of income; (10) resolve all legal issues and not accrue new criminal charges; (11) complete an alcohol and drug assessment and follow all recommendations therefrom; (12) submit to random drug screens; (13) complete the medically supervised weaning process at the methadone clinic to wean herself from methadone; (14) not sell the methadone wafers to others; (15) not associate with known drug users; (16) continue ongoing group meetings to address her drug addiction; and (17) commit to staying sober, including submitting a sobriety plan to DCS in writing.

         According to Ms. Ball, because Mother was initially not in compliance with the permanency plan, Ms. Ball had discussed adoption with Foster Parents. Ms. Ball explained that she had also relayed information to Foster Parents that DCS planned to amend its petition in juvenile court to include allegations of severe child abuse. The petition was never amended, however, and the juvenile court did not address severe child abuse at the adjudicatory hearing.[9] According to Ms. Ball, Mother began complying with the requirements of the permanency plan when Mother and Father separated in July 2012. The record establishes that Mother's last positive drug screen was on June 6, 2012.

         DCS Family Services Worker Kelly Dyer testified that she was assigned to this case in November 2012. Ms. Dyer explained that Mother had begun complying with the requirements of the permanency plan by the time Ms. Dyer acquired the case and that she ultimately completed all of the requirements of her permanency plan. Specifically, Mother had completed in-home education classes, which included instruction in domestic violence, proper nutrition, appropriate discipline, various parenting topics, the impact of alcohol and drugs on children, and the impact of domestic violence on children. Ms. Dyer elaborated that Mother had continued her participation with in-home alcohol and drug education, as well as attending a class similar to Narcotics Anonymous. Additionally, Mother completed a program entitled "Celebrate Recovery, " wherein she was subjected to random drug screens. According to Ms. Dyer, Mother visited with the Children, obtained employment that she had retained for over two years at the time of trial, and maintained housing for two years. Furthermore, Ms. Dyer maintained that Mother had a support system through the maternal grandmother and maternal uncles, all of whom assisted her in caring for the Children. At the time of trial, the Children had been placed with Mother for approximately two years on a trial home visit. Ms. Dyer testified that DCS intended to restore custody of the Children to Mother, emphasizing that the Children were attached to Mother and doing well in her care.

         During the pendency of the dependency and neglect action in juvenile court, Mother returned to Georgia to reside with the maternal grandmother and a maternal uncle. Consequently, DCS submitted a request to the state of Georgia, pursuant to the Interstate Compact on the Placement of Children (ICPC), seeking to place the Children with Mother. Georgia's Department of Human Services denied the ICPC request to place the Children with Mother in Georgia and stated in its response: "There is CPS history in Catoosa County with this family. [Mother] appears to be continuing the pattern of behavior that resulted in a Termination of Parental Rights for two children here in Georgia." Following the denial of the ICPC request, Ms. Dyer encouraged Mother to return to Tennessee. By June 2013, Mother had obtained housing in Tennessee. Upon the juvenile court's approval, the Children began the trial home visit with Mother on October 2, 2013.[10] As of trial, the Children remained on a trial home visit with Mother. Ms. Dyer testified that DCS planned to restore legal custody of the Children to Mother with no continued services.

         Mother was arrested on September 4, 2013, and charged with aggravated child abuse against Chance due to his severe malnutrition. On March 26, 2014, Mother pled guilty to attempted child neglect, a class A misdemeanor, and was sentenced to eleven months and twenty-nine days of incarceration, to be suspended upon good behavior. Mother was also to complete six months of supervised probation and six months of unsupervised probation as part of her criminal sentence. Melanie Benson, Mother's probation officer, testified that as part of her probation, Mother was required to call the "drug line, " which afforded Mother a one-day notice to report for her drug screen; pay supervision fees; pay court costs; provide proof of employment; and provide proof of any prescriptions she may have had that would cause her to test positive on a drug screen. According to Ms. Benson, Mother fully complied with the terms of her six-month supervised probation. Ms. Benson also explained that Mother tested positive for hydrocodone on one drug screen but that Mother provided a corresponding prescription for hydrocodone.

         During trial, Mother testified that Father was abusive and that she had been separated from Father for three years. She had filed for divorce and intended to proceed with the action. According to Mother, she had been in her current home for two and one-half years and had been "clean and sober" for three years by the time of trial. As evidenced through testimony and Mother's subpoenaed medical records, Mother did obtain five short-term prescriptions for opiates during the fourteen months preceding trial. Mother received a prescription for hydrocodone connected with dental work in July 2014 and another prescription for Percocet associated with dental work in September 2014. Mother testified that she consumed the entire prescription both times. On November 15, 2014, Mother received a prescription for hydrocodone due to an abscess on her armpit resulting from an ingrown hair. Two days later, Mother returned for a follow-up appointment and was prescibed Percocet. Mother testified that she informed the prescribing physician that she had some hydrocodone pills remaining, but he wrote her a prescription for Percocet because, according to Mother, "[The doctor] said [the abcess] was really bad."

         According to Mother's medical and dental records, Mother did not disclose her opiate addiction to either her dentist or her treating physicians prior to receiving those prescriptions. At trial, Mother further testified that she had been currently prescribed thirty pills of Percocet due to a broken foot. The record does not contain a medical record to substantiate this injury. According to Mother, hydrocodone and Percocet were among her drugs of choice when she was addicted to drugs. In addition to failing to inform her ...

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