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In re Courtney R.

Court of Appeals of Tennessee, Nashville

April 28, 2017

In re COURTNEY R.

          Session Date: April 12, 2016

         Appeal from the Circuit Court for Lawrence County No. 291215 J. Russell Parkes, Judge

         This case concerns the applicability of the Interstate Compact on the Placement of Children ("ICPC"). After the mother abandoned her child, the juvenile court found the child to be dependent and neglected and placed the child in state custody. The State sought provisional placement of the child with her father, who was unaware of the child's existence until the dependency and neglect proceedings. Because the father lived in another state, the State made a request under the ICPC to the father's state of residence for a home evaluation. The response to the request recommended against the placement. In light of the response, the juvenile court held a hearing on disposition in which it ordered the child to remain in State custody. After the father appealed, the circuit court awarded custody to the father and relieved the State of any further responsibility for the child. On appeal to this court, among other things, the mother argues that the ICPC precluded awarding custody to the father. Because we conclude the ICPC did not apply, we affirm the decision of the circuit court.

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

          Teresa Brewer Campbell, Lawrenceburg, Tennessee, for the appellant, Shana G.

          Randy Hillhouse, Lawrenceburg, Tennessee, for the appellee, Johnican B.

          Stacie Odeneal, Lawrenceburg, Tennessee, Guardian Ad Litem.

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

          W. Neal McBrayer, J., delivered the opinion of the court, in which Richard H. Dinkins and Arnold B. Goldin, JJ., joined.

          OPINION

          W. NEAL McBRAYER, JUDGE

         I.

         On February 10, 2014, the Juvenile Court of Lawrence County, Tennessee, placed Courtney R. in the custody of the Tennessee Department of Children's Services ("DCS"). The court removed the child based on probable cause of neglect and dependency.[1]Specifically, the court found that remaining in the home of Shana G. ("Mother") and/or her boyfriend was "contrary to the welfare of the child" and "not in the child's best interest." That same day, the court appointed Stacie Odeneal (the "GAL") to serve as guardian ad litem for the child.

         The following day, February 11, the GAL filed a petition to determine dependency and neglect and to challenge paternity. Although Mother's boyfriend was named as father on Courtney's birth certificate, both he and Mother apparently acknowledged that he was not Courtney's father. Consequently, among other things, the GAL requested that genetic testing be conducted to exclude the boyfriend as the child's father. Later the GAL filed a motion requesting that the boyfriend be disestablished as the child's father.

         Mother and her boyfriend waived both the preliminary and adjudicatory hearings, and the child remained in DCS custody and was placed with foster parents. During this period, Johnican B., a resident of Alabama, came forward claiming to be the child's father. The juvenile court ultimately disestablished Mother's boyfriend as father and established Johnican B. ("Father") as the biological father of Courtney.

         Father also waived the preliminary and adjudicatory hearings. And he stipulated that his child was dependent and neglected while in the care of Mother. Mother and Father then participated in the development of a permanency plan. The plan had the alternative permanency goals of returning the child to parent or adoption.

         In furtherance of the permanency plan's goals, DCS sought to provisionally place the child with Father. However, before placing Courtney with her father, DCS sought expedited ICPC[2] approval or denial of the placement with the State of Alabama. The ICPC requires that a "sending agency, "[3] among other things, notify the appropriate public authorities of the state where the child is proposed to be placed. Tenn. Code Ann. § 37-4-201 (2014) (Article III(b)). The placement cannot be made "until the appropriate public authorities in the receiving state . . . notify the sending agency, in writing, to the effect that the proposed placement does not appear to be contrary to the interests of the child." Id. (Article III(d)).

         Alabama authorities did not approve the placement. The letter responding to the ICPC request listed several reasons for disapproval. Alabama authorities cited a report of sexual abuse against Father when he was a minor "coded as 'indicated'" and two later reports coded "not indicated."[4] They noted "major concerns" with Father's parenting abilities. And they referenced worries over the ability of Father to support a child financially and his lack of a support system.

         Following Alabama's denial of the placement, on February 9, 2015, the juvenile court held a dispositional hearing[5] on the dependency and neglect petition the same day. The juvenile court ordered that Courtney remain in the custody of DCS. Father appealed to the Circuit Court for Lawrence County.[6]

         On April 10, 2015, the circuit court held a de novo hearing. The sole issue presented by Father was the proper disposition of the child. Father requested that he be granted custody. DCS opposed the request, relying on the ICPC's prohibition against placement of a child without the receiving state's approval. DCS also, over Father's objections, introduced into evidence the letter from the Alabama authorities disapproving the placement request.

         The circuit court granted custody of the child to Father. The court's order addressed the concerns raised by the Alabama authorities in their letter disapproving the placement. With respect to the allegations of sexual abuse, the court heard from the purported victim in the instance coded "indicated." The victim "testified emphatically that the alleged abuse did not occur, that she ha[d] a good relationship with [Father] and the [Alabama] Department of Human Services did not contact her in August or September 2014 to inquire as to this past abuse." The court found the purported victim "highly credible." The court declined to consider the other reports of abuse against Father. Noting that they "did not result in an 'indication, '" the court found the allegations to be "unreliable hearsay."

         With respect to the other concerns raised by the Alabama authorities, the court considered the record as a whole and the evidence presented by Father and found "it [wa]s in the best interests of the child for her to be in the care and custody of her [Father]." The court found Father's home to be appropriate. The court also found both Father and his fiancée "to be very sincere and credible, and apparently capable of raising children, as evidenced by the uncontested proof that they have other children in the home who [we]re being appropriately cared for." The court further noted, contrary to the letter from the Alabama authorities, that Father had "an extended family support system who [we]re willing to assist him in the care of the child."

         Then the court considered the applicability of the ICPC. It determined that the ICPC was not applicable because the award of custody to Father was not a placement in foster care. Specifically, the court reasoned as follows:

it appears that the ICPC concerns only arise when sending a child to another state for continued foster care. However, under this court's authority in a de novo disposition pursuant to TCA 37-1-130, the court has the full panoply of placement options. The court does not have to continue placement of the child in foster care but, in accordance with the statute, has a wide range of options, which are subservient to the best interests of the child. TCA 37-1-130(a) specifically authorizes the court to place the child with a parent, and -- pursuant to section (a)(2)(D) of that same statute - to place the child "in another state, with or without supervision". The court does not make this finding without concerns, but specifically finds that [Father] has fundamental ...

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