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In re A.L.H.

Court of Appeals of Tennessee, Nashville

August 31, 2017

In re A.L.H., et al.

          Assigned on Briefs April 3, 2017

         Appeal from the Circuit Court for Wayne County No. 4678 Stella L. Hargrove, Judge

         This is an appeal from an order finding two children of S.B. (mother) and R.H. (father) to be the victims of severe child abuse in the couple's care and control. On July 24, 2015, the Department of Children's Services (DCS) received a referral alleging, in part, that the parties' three children, A.L.H., A.G.B., and A.R.B. (collectively the children), were drug-exposed. On August 27, 2015, the children underwent hair follicle drug testing. A.G.B. and A.R.B. tested positive for methamphetamine. A.L.H. was negative for all substances. On September 23, 2015, DCS filed a petition to declare the children dependent and neglected. Mother and father stipulated that the children were dependent and neglected, but they expressly did not agree with the finding of severe child abuse. The Juvenile Court for Wayne County (the juvenile court) entered an order finding A.G.B. and A.R.B. to be the victims of severe abuse. Mother and father appealed to the Circuit Court for Wayne County (the trial court). On July 14, 2016, the trial court entered an order finding A.G.B. and A.R.B. to be the victims of severe child abuse in the care and control of mother and father. Mother and father appeal. We affirm.

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

          Teresa Brewer Campbell, Lawrenceburg, Tennessee, for the appellant, S.B. Amy Long Schisler, Waynesboro, Tennessee, for the appellant, R.H.

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

          Charles D. Susano, Jr., J., delivered the opinion of the court, in which W. Neal McBrayer and Arnold B. Goldin, JJ., joined.

          OPINION

          CHARLES D. SUSANO, JR., JUDGE

         I.

         Mother and father were never married. They had three children together. On July 24, 2015, DCS received a referral alleging that the children suffered from drug exposure, lack of supervision, and environmental neglect. With respect to drug exposure, the referral alleged that the parents were cooking and using methamphetamine. Additionally, it was alleged that A.R.B. had grabbed a hot meth pipe and burned her hand. Following its investigation, DCS classified the lack of supervision and environmental neglect as unsubstantiated. On July 28, 2015, DCS investigator Erica Prince located the parents and screened them for drugs. Both parents tested positive for opiates. On August 27, 2015, DCS collected hair follicle samples from the children for drug testing. A.G.B. and A.R.B. tested positive for methamphetamine. However, A.L.H. was negative for all substances. At the time of the tests, A.G.B. was nineteen months old, and A.R.B. was five months old.

         On September 23, 2015, DCS filed a petition to declare the children dependent and neglected. Mother and father stipulated that the children were dependent and neglected, but they reserved the issue of severe child abuse. Because father had been arrested on domestic violence charges and was under a no contact order with respect to mother and the children, the children remained in mother's custody. Mother retained custody of the children on the condition that she cooperated with DCS and complied with all court orders. Furthermore, DCS required that mother remain in a domestic violence shelter.

         On October 6, 2015, father tested positive for hydrocodone and methamphetamine. At trial, father alleged that he tested positive for methamphetamine because he had taken cough medicine. On October 13, 2015, without permission from DCS, mother left the domestic violence shelter with the children. On October 22, 2015, DCS located mother and the children, and the juvenile court entered an order placing custody of the children with DCS. That day, mother tested positive for opiates. On November 13, 2015, the children were drug tested a second time, and each of the children was negative for all substances tested.

         On May 20, 2016, the juvenile court entered an order finding that A.G.B. and A.R.B. were the victims of severe abuse. Mother and father appealed to the trial court. On June 13, 2016, the trial court entered an order finding clear and convincing evidence that A.G.B. and A.R.B. were the victims of severe child abuse in the care of or under the control of mother and father based upon A.G.B. and A.R.B.'s exposure to drugs. Mother and father appeal.

          II.

         Mother raises the following issues, as paraphrased from her brief:

Whether the trial court erred in finding that mother exposed the children to methamphetamine;
Whether the trial court erred in finding clear and convincing evidence of severe abuse without evidence to prove whether A.G.B. and A.R.B were exposed to methamphetamine other than by skin contact with someone who had used methamphetamine, how much exposure to methamphetamine they had, or the level of or duration of the exposure to methamphetamine;
Whether the trial court erred in finding severe abuse when the state failed to articulate the injury to A.G.B. and A.R.B. that rises to the level of severe bodily injury or death;
Whether the trial court erred in finding severe abuse when the state failed to prove causation between the drug exposure and the likelihood of severe bodily injury or death;
Whether clear and convincing evidence supports a finding of severe child abuse when A.L.H. did not test positive for methamphetamine.

         Father raises the following issue:

Whether clear and convincing evidence supports the trial court's finding that father committed severe child abuse against A.G.B. and A.R.B. by the exposure to methamphetamine (1) when there is no evidence of the manufacture of methamphetamine; (2) when there is no expert testimony to show the likelihood of serious bodily injury from exposure to methamphetamines by determining the levels of methamphetamine in the child's system, the duration of the exposure, and the effects of the exposure to methamphetamines; and (3) when there was no ...

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