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In re Hailey S.

Court of Appeals of Tennessee, Nashville

December 5, 2016

IN RE HAILEY S.

          Assigned on Briefs October 4, 2016

         Appeal from the Circuit Court for Macon County No. 2014CV87 Clara W. Byrd, Judge

         This appeal arises from an adjudication of dependency and neglect against the father of a child born out of wedlock and a denial of an intervening petition for custody filed by the father's relatives. The father and intervening petitioners appeal the circuit court's decision. We affirm.

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

          Connie Reguli, Brentwood, Tennessee, for the appellants, Matthew S. M., Bobbi DuBoise, and Will DuBoise.

          Herbert H. Slatery, III, Attorney General and Reporter, Andree S. Blumstein, Solicitor General, and Kathryn A. Baker, Asst. Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Children's Services.

          Lisa C. Cothron, Lafayette, Tennessee, Guardian ad Litem.

          John W. McClarty, J., delivered the opinion of the court, in which Frank G. Clement, Jr., P.J., M.S., and Kenny Armstrong, J., joined.

          OPINION

          JOHN W. MCCLARTY, JUDGE

         I. BACKGROUND

         Hailey Ann S. ("the Child" or "Hailey") was born out of wedlock on August 8, 2012, to Aren S. ("Mother") and Matthew S. M. ("Father") in Johnson City, Tennessee. Mother and Father attended the same high school in Michigan and met in 2011 during a drug exchange. When Mother became pregnant, she moved to Tennessee to live with her mother, Michelle S. Father saw Mother on three occasions after she moved; he then dropped out of school and came to Tennessee in February 2012. The two argued about Mother's drug use, and they broke up two to three weeks later. At the time of the Child's birth in August 2012, Father returned to Tennessee and stayed with Mother in the hospital for four to five days before returning to Michigan. Father signed an acknowledgment of paternity two days after Hailey's birth, and her birth certificate bears his name. See Tenn. Code Ann. § 24-7-113. However, Father later testified that when he signed the acknowledgment of paternity, he thought he was giving guardianship rights to Michelle S., Mother's parent. Father was never the custodial parent of Hailey, he never had any regular structured parenting time, and he never established a financial relationship with the Child.

         Over the following months, Father saw Hailey on two to three occasions. After Mother refused to allow him to see the Child, on March 27, 2013, seven months after Hailey's birth, Father filed a petition for visitation in Sumner County.[1] His handwritten petition sought visitation in order for him to have a relationship with his daughter. He later claimed that he knew of no drug use by Mother at that time. Before a hearing could be held on Father's request for visitation, the Tennessee Department of Children's Services ("DCS") removed Hailey from Mother's custody.[2]

         On June 21 and 22, 2013, when the Child was ten months old, Mother attended a party where drugs were in use. Mother later admitted to DCS to ingesting 23 Klonopin pills and 8 Valium pills, along with smoking half a joint of marijuana. Hailey was left without proper supervision at the party and suffered physical abuse. Mother informed interviewers that "Matthew Marble" was Hailey's father but did not provide DCS contact information for him. After DCS determined that there was no less drastic alternative than removal of the Child from Mother, who was still a minor herself, temporary legal custody of Hailey was awarded to the state by the juvenile court. DCS's petition alleged that Father was "unknown in the power of attorney" provided by Mother. No allegations were made against Father at that time.

         On June 23, 2013, Hailey was placed in the foster home of Dana D. ("Foster Mother") and Brandon G. ("Foster Father") (collectively, "Foster Parents"). When Foster Parents took her in, the Child exhibited bite marks and bruises on her face, scabs under her eye, and bruising on her stomach and feet. Foster Parents observed that Hailey did not want to be held and did not make eye contact; she cried and could not be soothed.

         Shortly after the Child's placement with Foster Parents, she was examined by a pediatric neurologist, Dr. Marcos Cruz. An MRI revealed a micro-hemorrhage in the Child's brain due to trauma. Consistent with such trauma, her gross and fine motor functions were affected by weakness on her left side (hemiparesis). Dr. Cruz diagnosed Hailey with cerebral palsy--a brain injury before the age of one. Other diagnoses for the Child included epilepsy, cortical vision impairment, fetal alcohol spectrum disorder, ADHD, drug exposure in utero, and autism spectrum disorder. Around the same time, Hailey received an evaluation from Tennessee Early Intervention System ("TEIS") and began developmental therapy with Rainbow Early Intervention.

         About eight or nine days after Hailey was removed from Mother's custody, DCS finally made contact with Father in Michigan. Interviews with Father revealed some past drug use on his part and a seizure disorder. However, he had not experienced any seizures in over a year and was not on medication. Father admitted that he lived with his grandmother and did not have a way to support himself or the Child. The Interstate Compact on the Placement of Children ("ICPC") was discussed with Father and his mother during these beginning conversations. See Tenn. Code Ann. §§ 37-4-201 to -207.

         When a child enters foster care, Tennessee law requires the development of a plan of care. Within that plan are included parental responsibilities that are reasonably related to the plan's goal. Tenn. Code Ann. § 37-2-403(a)(2)(A). Initially, Father did not get involved in the permanency plan process, stating that he was advised not to participate. Despite his lack of involvement at that point, DCS mailed a copy of the permanency plan to Father, along with materials on parenting, employment, and communicating with children through play. Because of his lack of housing or means of support, it appears that DCS did not pursue Father as a placement for Hailey.

         In September 2013, Father became involved in revising the permanency plan. Per the plan's requirements, he was expected to complete a mental health assessment and to follow the recommendations, pay child support, establish and maintain a home and a legal means of income through employment or public benefits, develop and maintain a relationship with Hailey, take a parenting class, and be further evaluated and receive clearance regarding his seizure disorder. He was also required to submit child support. In an effort to assist Father, the caseworker and supervisor at DCS provided their contact information, helped him determine if he had insurance coverage for mental health and alcohol and drug ("A&D") treatment, attempted to set up mental health services for him, searched for Michigan resources and provided this information to Father, attempted to set up appointments for him in Michigan, arranged visitation, offered and paid for transportation and lodging for Father, kept in touch with him, provided redirection during and reports about visitation, paid for paternity testing and explained the results, paid for Father's mental health and A&D assessment and explained the results, and provided therapeutic visitation.

         Early in September 2013, DCS filed an amended petition alleging that Hailey was dependent and neglected as to Father because he had failed to file a petition to legitimate the Child and had failed to protect her from Mother's drug use. On October 3, 2013, the results of DNA testing were filed, revealing that Father indeed was the biological father of the Child.

         Around this time, Father and his mother approached his aunt and uncle, Will and Bobbi DuBoise, about being a possible placement for Hailey. The DuBoises live in Michigan, approximately 20 to 30 minutes from Father. Upon learning of the ICPC process, Ms. DuBoise immediately began pursuing foster care licensure in Michigan. By November 2013, Ms. DuBoise was attending DCS's foster care review board meetings, began traveling regularly to Tennessee with Father to visit with Hailey, and contacted Michigan doctors in preparation for having the Child in their home. DCS initiated the ICPC process for both Father and the DuBoises (collectively, "Appellants") and submitted requests to Michigan in January 2014. During the ICPC investigative process, Father related that his relationship with Mother ended because he "was angry with her that she was continuing to do drugs while she was pregnant." He also stated that "it took him awhile to learn it was better to just send the items that Hailey needed versus the money because [Mother] used the money for drugs and other things." The Michigan investigator denied Father's ICPC request because he could not support himself or Hailey and was reliant upon his grandmother for housing.

         Meanwhile, Father completed a mental health and A&D assessment in Tennessee in February 2014. The counselor, Jerri Cross, noted that Father displayed some cognitive distortion and memory issues. During the assessment, Father mentioned a "dark time" which he refused to discuss. He was diagnosed with Post Traumatic Stress Disorder ("PTSD") and Depressive Disorder Not Otherwise Specified. He received two "rule-out" diagnoses of Pervasive Developmental Disorder (Asperger's) and Cognitive Learning Disorder - these diagnoses required that Father be observed over time for further assessment. The counselor recommended that Father attend individual counseling to address his PTSD, depressive symptoms, and past history of trauma; that he obtain a mental health medication management assessment to determine if he needed medication; that he complete parenting education; that he be involved in Hailey's therapies to learn about her needs; and that he continue with his plans of obtaining his GED and employment.[3]

         Between 2010 and 2015, Father was seen by a Michigan therapist of his choosing intermittently on seven occasions. In December 2013, Father approached the therapist requesting a letter to prove that he was not a risk to Hailey. Because he had not seen Father for a period of time, the therapist explained that he could not provide such a letter. He discussed various options and recommended an independent personality assessment. According to the therapist, Father expressed no interest. He referred Father to Behavioral Health Resources, but the therapist did not know if Father had followed up. The therapist testified that in 2014, Father told him that "he really didn't want anything from treatment other than to meet the [DCS] requirements." In March 2015, the therapist reported to DCS that Father had a bad attitude toward counseling: "Father 'blames Tennessee and takes zero responsibility for his child being in custody. [Father] is focusing on how to fight the system instead of work with the system.'"

         As to the other aspects of the permanency plan, when Father was asked by DCS if he needed assistance with anything, he declined all help. The record does reveal that Father attended parenting classes through Fatherhood Connections in Michigan, signed medical release forms, and submitted to random drug screens. He did not remit child support.

         Meanwhile, the DuBoises' ICPC request was ultimately approved, effective April 9, 2014, and DCS moved in July 2014 to place Hailey with the couple for a trial home placement. However, on August 1, 2014, the Child's then guardian ad litem filed an objection. She complained that a new home study was needed because additional foster children had been accepted into the DuBoise home. She also contended that the Child's best interests were not served by her removal to Michigan, noting Hailey's medical condition and that Mother was still entitled to visitation in Tennessee at least twice monthly at that time. Mother also expressed her disagreement with the placement. After a hearing on August 8, 2014, the court denied the trial home placement motion, finding "that it [was] not in the best interest of the [C]hild to be placed in Michigan." The DuBoises filed an intervening petition for custody and a motion to intervene in the juvenile court on August 12, 2014.

         DCS filed a petition to terminate Father's parental rights on September 18, 2014, alleging that termination was supported by the statutory grounds of (1) abandonment for failure to remit support, (2) substantial noncompliance with the permanency plans, and (3) the persistence of conditions which led to removal. For some reason, Father stipulated to dependency and neglect in the juvenile court proceeding due to his failure to legitimate Hailey; he also admitted to lack of stable housing. After the juvenile court adjudicated Hailey dependent and neglected on September 29, 2014, and denied the DuBoises' motion to intervene, Appellants appealed to the circuit court. The court then denied their motion to continue the termination proceeding, finding that the termination proceeding was an independent action.

         On April 21, 2015, the first day of the circuit court's de novo review of the dependency and neglect finding, Appellants moved to dismiss the September 2013 petition, since Father was Hailey's legal parent and DCS had informed counsel that it was not proceeding under a theory of severe abuse. DCS does not deny that it had declared that it did not intend to pursue a severe abuse finding against Father. However, the circuit court granted DCS leave to amend its petition. When the hearing resumed on May 5, 2015, DCS filed its second amended petition, in which it asserted that the Child was dependent and neglected as to Father who "failed to protect his child from the drug use by the mother." DCS also contended that Father had "admitted in court . . . that he cannot care independently for his child."

         Father argued that his due process rights of notice and opportunity to be heard were violated by the court's allowance of the amended petition. However, he failed to establish that he was harmed by the amendment. One reason for allowing the amendment was to include a statement that Father made on the first day of trial in which he admitted that he could not care for the Child. Also, the bulk of the testimony and evidence was not taken until eight months after DCS filed the amended petition. By the time the trial resumed on January 12, 2016, Appellants had notice of what the petition included and enough time to prepare Father's defense. See Northeast Knox Utility Dist. v. Standfort Constr. Co., 206 S.W.3d 454, 459 (Tenn. Ct. App. 2006). Thus, the court did not abuse its discretion when it allowed the amendment. State, Dep't of Human Servs. v. Hauck, 872 S.W.2d 916, 918-19 (Tenn. Ct. App. 1993) (citing Derryberry v. Ledford, 506 S.W.2d 152, 156 (Tenn. Ct. App. 1973)). The circuit court also was permitted to go beyond the dependency and neglect petition to make its own determination that Father committed severe abuse. Tennessee Code Annotated section 37-1-129(a)(2) provides: "If the petition alleged the child was dependent or neglected as defined in § 37-1-102(b)(12)(G), or if the court so finds regardless of the grounds alleged in the petition, the court shall determine whether the parents or either of them or another person who had custody of the child committed severe child abuse." (Emphasis added.). DCS had properly petitioned the court to find the Child dependent and neglected under the definition provided in Tennessee Code Annotated section 37-l-102(b)(12) and included facts about Hailey's status to demonstrate that she met the definition. The circuit court recited in its order part of the statutory definition of a dependent and neglected child and included subsection (b)(12)(G): a child who is suffering from abuse and neglect.

         The circuit court trial spanned ten months: April 21 and May 5, 2015, and January 12 through 15, 2016. After the first two days of trial, the court entered a stay when DCS announced that Father's parental rights had been terminated in the separate proceeding on April 30, 2015, and that Father had sued DCS in federal court. Father's federal court action argued that parents with disabilities were entitled to greater flexibility from DCS. See Marble v. State, No. ...


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