Assigned on Briefs October 4, 2016
from the Circuit Court for Macon County No. 2014CV87 Clara W.
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
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed; Case Remanded
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.
C. Cothron, Lafayette, Tennessee, Guardian ad Litem.
W. McClarty, J., delivered the opinion of the court, in which
Frank G. Clement, Jr., P.J., M.S., and Kenny Armstrong, J.,
W. MCCLARTY, JUDGE
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.
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. 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
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.
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.
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.
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.
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.
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.
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
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.
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.
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.'"
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.
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.
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.
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."
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.
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,