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In re Marterrio H.

Court of Appeals of Tennessee, Jackson

April 12, 2017

IN RE MARTERRIO H.[1]

          Assigned on Briefs February 2, 2017 Session

         Appeal from the Juvenile Court for Shelby County No. Z2243 David S. Walker, Special Judge

          The trial court terminated Mother's parental rights after finding by clear and convincing evidence that (1) Mother failed to substantially comply with the requirements of the permanency plans, (2) Mother's mental incompetence prevented her from properly caring for the Child, and (3) the conditions which precipitated removal of the Child from Mother's custody still persisted. The trial court then found by clear and convincing evidence that it was in the child's best interest to terminate Mother's parental rights. Mother appealed. We affirm the trial court's judgment.

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

          Reginald E. Shelton, Memphis, Tennessee, for the appellant, Brenda K.A.

          Herbert H. Slatery III., Attorney General and Reporter and Brian A. Pierce, Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Children's Services.

          James Franklin, Jr., Memphis, Tennessee, Guardian Ad Litem.

          Andy D. Bennett, J., delivered the opinion of the Court, in which Charles D. Susano, Jr., and Kenny W. Armstrong, JJ., joined.

          OPINION

          ANDY D. BENNETT, JUDGE

         Factual and Procedural Background

         In this matter, the Tennessee Department of Children's Services ("the Department" or "DCS") seeks to terminate the parental rights of Brenda K.A. ("Mother") to Marterrio H. ("the Child").[2] DCS became involved with the family on August 14, 2012 when the Child and his older brother, Micheal H., were removed from the home because Mother was incarcerated for educational neglect due to her failure to comply with the Compulsory School Attendance Law.[3] The Child reportedly missed more than one hundred days of school while in Mother's custody. Shortly after removal, DCS placed the Child in the resource home of Yvonne T., and he has remained there continuously since the removal. On November 7, 2013, the juvenile court adjudicated the Child dependent and neglected due to educational neglect. The court found that Mother suffered from mental health issues that prevented her from properly caring for the Child. The court then ordered that the Child remain in the legal custody of DCS.

         Following the removal, DCS developed five permanency plans for the Child between 2012 and 2015. The initial permanency plan, developed on August 28, 2012, and ratified on October 11, 2012, listed a dual goal of "Return to Parent" or "Exit Custody with Relative." The second permanency plan, developed on July 17, 2013, and ratified on August 8, 2013, included the same goals as the previous plan. In the third permanency plan, developed on July 8, 2014, and ratified on August 27, 2014, DCS amended the permanency plan goals to "Return to Parent" and "Adoption." The permanency plan developed on November 10, 2014, and ratified on January 28, 2015, as well as the final permanency plan developed on June 25, 2015, and ratified on August 26, 2015, listed the same goals as the third permanency plan. The permanency plans required Mother to (1) complete a parenting assessment and follow all recommendations; (2) complete a mental health assessment and follow all recommendations; (3) pay her $1, 400 utility bill; (4) complete a psychological evaluation and comply with recommendations; (5) obtain stable housing; (6) comply with case management recommendations; (7) pay child support; and (8) visit the Child.

         DCS assigned Rita Dortch as the case manager in August 2012. At trial, Ms. Dortch testified that the most important tasks in the permanency plans were for Mother to provide a stable home for the Child and pay her utility bill. According to Ms. Dortch, DCS assisted Mother in complying with the permanency plans' requirements by transporting her to appointments, providing bus passes, and referring her for counseling and case management services. DCS worked with Mother for three years before filing the petition to terminate Mother's parental rights. In the nearly four years between the Child's removal and trial, Mother completed the psychological evaluation, obtained employment two weeks before trial, occasionally purchased food or clothing for the Child, and regularly visited the Child.

          Ms. Dortch testified that DCS arranged for two service providers to provide Mother in-home therapy. The first of these service providers was Camelot, with which Mother complied. As additional assistance, DCS arranged for Health Connect America to provide Mother in-home therapy. However, Mother refused the Health Connect America services.

         At the time of trial, Mother had failed to secure stable housing. She resided at her mother's house with her mother and brother. Ms. Dortch testified that this residence initially failed to meet the requirements of the permanency plans because Mother's daughter, who had been charged with severe child abuse, resided in the home.[4] Ms. Dortch further testified that the home failed to meet the requirements of the permanency plans because Mother's brother resided in the home. Ms. Dortch stated that she felt uncomfortable and "kind of afraid" during a visit to the home because she observed the brother talking to himself and laughing. According to Ms. Dortch, Mother informed her that the brother had been diagnosed with schizophrenia and "he doesn't take his medicine." Ms. Dortch testified that she had worked for DCS for thirty years, and she had never asked that a child be returned to a parent who resided with someone diagnosed with schizophrenia unless the person was taking his or her medicine. However, Ms. Dortch admitted on cross-examination that she had not conducted an independent investigation of the brother's mental health.

         On July 31, 2014, LaShaunda P. Massey, Ph.D., performed a psychological evaluation on Mother. At trial, Dr. Massey was certified as an expert in clinical psychology. Dr. Massey completed the Minnesota Multiphasic Personality Inventory ("MMPI") test as part of her evaluation of Mother. Dr. Massey explained that the MMPI is "a personality assessment that can give information about the person's clinical disorders and other personality traits that are relevant for some one and that can give indications of their function over time." According to Dr. Massey, the test showed:

[Mother] is somewhat narcissistic and self-indulgent. That she can have a grandiose conception of her own capabilities. There [were] indications that she can be aggressive at times and has a tendency to blame others for situations and problems not seeing her own role in situations. . . . The testing also suggested that these problems and functioning were pretty long standing.

         In Dr. Massey's opinion, the major concerns were Mother's inability to admit her own role in problems and her tendency to blame others for her problems. Dr. Massey diagnosed Mother with Personality Disorder, not otherwise specified. Dr. Massey concluded that this was a long-term diagnosis and it would be difficult for Mother to effectuate change.

          At trial, Mother testified about events necessitating the Child's removal from the home. When asked why the Child missed more than one hundred days of school, Mother refused to acknowledge her role in his truancy and blamed the school. Mother testified as follows:

Q. So, whose fault was it?
A. It wasn't mines.
Q. It wasn't your fault?
A. Because if the parents allowed to have the children grades, I was denied that. That is discrimination. It's against the law.
Q. So, they never sent a report card to your house?
A. I'm talking about to - - they brought it home but it wasn't the right - -they had - - their grades wasn't right. I couldn't talk to no one at the school.
Q. So, you did get a report card, but the report card was wrong. Is that what you are saying?
A. Everything was wrong at school.

         Mother also testified regarding her efforts to comply with the requirements of the permanency plans. She stated that she had not paid her $1, 400 utility bill because she had been unemployed since 2014. However, she further testified that she obtained employment two weeks prior to the trial and planned to pay $200 every two weeks until the bill was paid in full. Mother stated that she had been attending counseling services provided by case management "for a couple of weeks." When asked what case management diagnosed her with, Mother responded, "Mental health."

         The Child's foster mother, Yvonne T. ("Foster Mother"), testified to the progress the Child had made while in her home. She stated that he was still two years behind, but his grades were good. Foster Mother explained that the Child had an Individualized Education Plan ("IEP") because he was "kind of behind other kids." As a result, she meets with his teachers to determine the Child's weaknesses and what work is necessary "to get him where he need[s] to be." Foster Mother further testified that she assisted the Child with his homework. According to the foster mother, she and her husband wished to adopt the Child if he becomes available for adoption.

          The Child testified at trial that he wanted to be adopted by his foster parents because it was "the best place." He articulated that he understood adoption meant that his birth parents would no longer be his parents and his foster parents would become his parents. When asked how that made him feel, the Child responded, "I'm good."

         The trial court heard the case on April 19, 2016 with David S. Walker presiding as a special judge. On May 24, 2016, the trial court entered a final order terminating Mother's parental rights to the Child. The trial court found by clear and convincing evidence that Mother failed to substantially comply with the requirements of the permanency plans, Mother was unable to adequately care for the Child due to her mental incompetence, and that the conditions which precipitated removal still persisted and other conditions existed which would likely subject the child to further abuse and neglect. The trial court also found by clear and convincing evidence that it was in the best interest of the Child to terminate Mother's parental rights. Mother appealed.

         On appeal, Mother presents three issues for our review. First, Mother argues that the findings of Special Judge David S. Walker should be set aside for lack of subject matter jurisdiction because he was not appointed as a special judge in accordance with statutory requirements and case law. Second, Mother argues that the trial court erred by finding by clear and convincing evidence that grounds for the termination of Mother's parental rights existed. Finally, Mother argues that the trial court erred by finding by clear and convincing evidence that termination of Mother's parental rights was in the best interest of the Child.

         Standard of Review

         Under both the federal and state constitutions, a parent has a fundamental right to the care, custody, and control of his or her own child. Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174-75 (Tenn. 1996). This right is not absolute, however. If a compelling state interest exists, the state may interfere with parental rights. Nash-Putnam, 921 S.W.2d at 174-75 (citing Nate v. Robertson, 871 S.W.2d 674, 678 (Tenn. 1994)). Our legislature has enumerated the grounds upon which termination proceedings may be brought. See Tenn. Code Ann. § 36-1-113(g). A parent's rights may be terminated only where a statutory ground exists. In re Matter of M.W.A., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998).

         Because terminating a parent's fundamental parental rights has severe consequences, termination cases require a court to apply a higher standard of proof. State Dep't of Children's Servs. v. A.M.H., 198 S.W.3d 757, 761 (Tenn. Ct. App. 2006). First, a court must determine by clear and convincing evidence that at least one of the statutory grounds for termination exists. Tenn. Code Ann. § 36-1-113(c); State Dept. of Children's Servs. v. Whaley, No. E2001-00765-COA-R3-CV, 2002 WL 1116430, at *9 (Tenn. Ct. App. May 30, 2002). After a court makes this determination, a court must find by clear and convincing evidence that termination is in the best interest of the child. Tenn. Code Ann. § 36-1-113(c); Whaley, 2002 WL 1116430 at *9; see also In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). "Clear and convincing evidence 'establishes that the truth of the facts asserted is highly probable, and eliminates any serious or substantial doubt about the correctness of the conclusions drawn from the evidence.'" In re Serenity B., No. M2013-02685-COA-R3-PT, 2014 WL 2168553, at *2 (Tenn. Ct. App. May 21, 2014) (quoting In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004) (citations omitted)).

         Because of the heightened standard of proof required in termination cases, we must adapt the customary standard of review established by Tenn. R. App. P. 13(d). Id. In accordance with Tenn. R. App. P. 13(d), we review the trial court's findings of fact de novo with a presumption of correctness unless the evidence preponderates otherwise. Id. Next, we must determine whether the facts establish the ...


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