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In re Gabriella D.

Supreme Court of Tennessee, Knoxville

September 29, 2017

In re GABRIELLA D., et al.

          Session June 2, 2017

         Appeal by Permission from the Court of Appeals Circuit Court for Hamilton County Nos. 13-A-193, 13-A-194, 13-A-195 L. Marie Williams, Judge

          The Tennessee Department of Children's Services ("DCS") removed three children from the custody of their parents and placed them with foster parents in March 2012 because one of the children, an infant, was severely malnourished. By July 2012, the children's mother was cooperating with DCS and complying with a permanency plan that set the goal for the children as reunification with their mother or another relative. The mother continued to comply with the permanency plan for the next sixteen months that the children were in foster care. On the day the children were scheduled to begin a trial home visit with the mother, July 31, 2013, the foster parents filed a petition in circuit court seeking to terminate the mother's parental rights and to adopt the children. After the foster parents filed their petition in circuit court, the juvenile court, which had maintained jurisdiction over the dependency and neglect proceeding, ordered DCS to place the children with the mother for the trial home visit. The circuit court trial on the foster parents' petition did not occur until September 2015. By that time, the children had resided with the mother on a trial basis for two years without incident. The mother, DCS, and the guardian ad litem appointed by the juvenile court in the dependency and neglect proceeding opposed the foster parents' petition. The foster parents and a guardian ad litem appointed by the circuit court sought termination of the mother's parental rights. After the multi-day trial, the trial court dismissed the petition, finding that the foster parents had proven a ground for termination by clear and convincing proof but had failed to establish by clear and convincing proof that termination is in the children's best interests. The foster parents appealed, and the Court of Appeals reversed. We granted the mother's application for permission to appeal and now reverse the judgment of the Court of Appeals and reinstate the trial court's judgment dismissing the foster parents' petition. We conclude that the trial court correctly determined that the proof does not amount to clear and convincing evidence that termination of the mother's parental rights is in the children's best interests.

         Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Reversed; Judgment of the trial court reinstated

          Rachel M. Wright, Hixson, Tennessee, for the appellant, Carla D. Susanne Lodico, Chattanooga, Tennessee, for the appellees, Karen P. and Thomas S.

          Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; Alexander S. Rieger, Deputy Attorney General; and Kathryn A. Baker, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services.

          Sam Byrd, Chattanooga, Tennessee, Guardian Ad Litem.

          Cara C. Welsh, Chattanooga, Tennessee, Amicus Curiae and Guardian Ad Litem for the Children in the Hamilton County Juvenile Court.

          Cornelia A. Clark, J., delivered the opinion of the court, in which Jeffrey S. Bivins, C.J., and Sharon G. Lee, Holly Kirby, and Roger A. Page, JJ., joined.



         I. Factual and Procedural Background[1]

         The appellant, Carla D. ("Mother"), now resides in Hamilton County, Tennessee, which borders Georgia, and has previously resided in Georgia. Mother has a long history with the child welfare agencies in both Georgia and Tennessee, specifically the Georgia Division of Family and Children's Services ("GDFCS") and DCS.[2] Mother has five biological children with the same man, Julius D. ("Father").[3] Mother's first childwas born December 24, 2004, in Georgia. GDFCS became involved with the familyfive months later, on May 23, 2005, as a result of an incident of domestic violence that occurred in the presence of the child.

         On February 3, 2006, Mother's second child was born addicted to drugs. Fifteen days later, GDFCS took both children into custody after Mother and Father were involved in an automobile accident in eastern Tennessee while under the influence of drugs and while their oldest child was in the vehicle with them. Mother, Father, and the child were transported to a hospital, and hospital personnel would not release the child to Mother and Father because of their intoxication. Mother and Father had tested positive at the hospital for marijuana, benzodiazepines, and methadone, and hospital personnel had to shake them to elicit a response. When GDFCS took the children into custody, the youngest child was still experiencing withdrawal symptoms and had a severe case of thrush, caused, at least in part, by dirty bottles. On September 11, 2007, a Georgia court terminated Mother's and Father's parental rights to these two children, and the children were later adopted by two different families.[4]

         On March 18, 2008, only six months after the Georgia court entered its termination order, Mother gave birth to Gabriella in Tennessee, across the border from where she lived in Georgia. Within a month of Gabriella's birth, GDFCS petitioned the Georgia court, asking the court to order Mother to participate with drug screening, citing Mother's history with GDFCS and history of drug abuse. The record does not reflect the disposition of this petition. But, on June 26, 2008, GDFCS received a report that Mother and Father had been smoking marijuana in Gabriella's presence and also abusing prescription medication. While Georgia law enforcement and GDFCS officials were in the home investigating the complaint, they noticed that Father appeared to be under the influence. He was caring for Gabriella at the time, and he dropped her while moving her from a bed into a nearby infant seat, hitting her head on the side of the infant seat. Law enforcement officers also found drug paraphernalia in the home. Additionally, a count of Mother's and Father's prescription medications revealed far fewer Xanax and Oxycontin pills remaining than what would have remained had the medication been taken as prescribed. GDFCS then took Gabriella into protective custody and placed her for eight months in the home of the family that had adopted one of her older siblings.

         After losing custody of Gabriella, Mother began cooperating with Georgia officials and complying with the conditions GDFCS had imposed for her to regain custody of Gabriella. Mother reported to GDFCS that she had separated from Father and was seeking a divorce, and she sought a protective order against Father. Mother completed an alcohol and drug intensive outpatient program, had clean drug screens, and enlisted the assistance of her own mother ("Maternal Grandmother"), who moved from Florida to Georgia to support Mother and help care for Gabriella while Mother worked. On February 2, 2009, Mother regained custody of Gabriella after a Georgia court found that she "had completed her case plan." But, in the order returning custody to Mother, the Georgia court directed GDFCS to provide "aftercare" for Mother and Gabriella for thirty days and also ordered Mother to "ensure" that Father have "no contact" with Gabriella.

         Unfortunately, Mother soon violated the Georgia order by returning to Father and resuming her drug use. Not quite eleven months after regaining custody of Gabriella, Mother gave birth to Jude in a Tennessee hospital on December 31, 2009.[5] He was born addicted to drugs. DCS received a referral because of Jude's drug addiction and required Mother to complete an alcohol and drug assessment. Mother satisfied this requirement, and DCS did not remove either Gabriella or Jude from Mother's custody or impose additional requirements.

          On May 12, 2010, Mother returned to the home she shared with Father to find him unconscious on the floor, and a friend's child, whom the friend had left in Father's care, dead in a travel crib.[6] Father's mother ("Paternal Grandmother") ordinarily cared for Gabriella and Jude in this home while Mother worked, but Paternal Grandmother and the children were not present in the home when this tragedy occurred, so the children were not removed from Mother's custody.

         About a month later, in June 2010, DCS received a new referral based on the Georgia order directing Mother to ensure that Gabriella have no contact with Father. DCS removed Gabriella and Jude from Mother's custody. During this removal, Mother had been using drugs and failed a drug screen. Nevertheless, DCS placed the children back with Mother three days later on the condition that she comply with a non-custodial permanency plan that, among other things, required her to stop abusing drugs and to keep the children away from Father until he received treatment for drug use. By August 20, 2010, Mother had passed three drug screens and had informed DCS that Father knew he could not have any contact with the children until he completed drug treatment. DCS returned the children to Mother without supervision or follow-up and closed its case.

         But, yet again, not long after regaining custody of the children, Mother returned to Father, resumed using drugs, and became pregnant again. Her fifth child-Chance-was born on September 9, 2011, and he had methadone in his system that Mother had received at the hospital prior to his birth to treat her addiction. Chance weighed six pounds and fourteen ounces at birth. About six months later, on March 5, 2012, Father took Chance to see a doctor, because Chance was not gaining weight. Chance was immediately transported from the doctor's office to the emergency room of a local Tennessee hospital, where he remained for four days. At the time of his admission, Chance weighed only seven pounds and six ounces, having gained only eight ounces since his birth. Chance was diagnosed with severe malnutrition and failure to thrive. Mother, who had been responsible for caring for Chance, claimed that she had been feeding him six to eight ounces of formula, six to eight times daily, along with baby cereal. She said he was not spitting up more than normal and was not having excessive diarrhea. Father reported that Mother knew Chance was not gaining weight properly but refused to seek medical treatment for him, fearing DCS would take custody of the children.

         After learning of Chance's malnutrition, DCS removed all three children from Mother's custody on March 5, 2012, and filed a petition in the Juvenile Court of Hamilton County ("Juvenile Court"). The Juvenile Court issued an order of protective custody on March 7, 2012.

         DCS placed the children with the appellees, Karen P. and Thomas S. (collectively "Foster Parents")[7] in east Tennessee. Foster Parents had only recently completed their training and had no prior experience as foster parents. Gabriella and Jude arrived at Foster Parents' home before Chance was released from the hospital. Both children were infested with lice that required a prescription to treat successfully. Neither had been to a doctor in more than eighteen months, and both were far behind on their vaccinations. Jude chewed food and kept it in his cheeks, seemingly out of fear that he would not be fed again for some time. Additionally, the children had no established routine and were accustomed to bedtimes of between midnight and 1:00 a.m. Gabriella, not quite four years old, openly used inappropriate language when speaking to and about her two-year-old brother, but she could not recite the alphabet, spell her own name, or count to ten.

         When Chance joined his siblings at Foster Parents' home a few days later, he looked and acted more like a newborn than a six-month-old. He had a distended belly, stick-like arms and legs, and a disproportionately large head, and he appeared emaciated, like "something that you saw on [] a commercial for [starving] children in Africa, " according to Foster Mother. Chance could not hold his head up on his own, and he stared blankly and could not follow objects with his eyes. He was described as suffering "developmental delays" by hospital staff and "significantly neurologically impaired" by an expert witness physician.

         DCS assigned family services worker Latisha Ball to the case. Ms. Ball assisted in developing the first family permanency plan, signed on March 21, 2012. The permanency plan indicated that Mother and Father had long been addicted to prescription drugs and had attended a methadone clinic off and on for many years. Reunification was listed as the goal of the permanency plan, but it also stated that DCS would not be bound to that goal if the Juvenile Court made a finding of severe abuse. The permanency plan stated that if the Juvenile Court made a finding of severe abuse, DCS would immediately file a motion to be relieved of any obligation to make reasonable efforts at reunifying the children with Mother and Father.[8] The permanency plan required Mother to: (1) complete a mental health intake to determine treatment needs; (2) maintain a safe, stable home for at least six months; (3) complete an alcohol and drug assessment and follow all recommendations; (4) adhere to the plan to wean herself off of methadone, attend aftercare meetings and counseling with her methadone counselor, and not sell methadone wafers to others; (5) submit to random drug screens; (6) sign releases for DCS to obtain progress notes and treatment plans; (7) attend visitation; (8) obtain legal, verifiable means of income and provide proof of income; (9) attend all medical appointments with the children and seek medical attention for them when needed; (10) pay child support as ordered; and (11) inform DCS of any change in circumstances.

         Mother initially made little progress toward complying with the permanency plan. Foster Mother said that, at one of Jude's medical appointments, Mother appeared "kind of out of it, slurring her words, [and] not steady on her feet, " "as if she was on some sort of narcotic." At a medical appointment to evaluate Jude's motor and cognitive skills, Mother indicated that Jude had no relevant medical history and failed to tell the nurse that he had been born addicted to drugs. Foster Mother had to step in and inform the nurse of this medical information. Mother also brought a photo album for the children to keep while in foster care, which included what Foster Mother believed were inappropriate photographs. In one of the photos, Father appeared to be holding a "joint." Another photo taken before DCS removed the children showed Jude holding an emaciated Chance.

         Because Mother initially failed to comply with the permanency plan, Ms. Ball discussed adoption with Foster Parents and told them that DCS planned to amend its petition in Juvenile Court to allege severe child abuse.[9] However, this conversation occurred before Mother's conduct changed in July 2012, after she and Father separated. Mother then asked for and received separate visitation, began complying with her permanency plan, and had no more positive drug screens after June 6, 2012.

         On September 5, 2012, Ms. Ball submitted a confidential report to the Juvenile Court, summarizing the progress that had been made. Ms. Ball stated that the permanency goal for each child was to "[e]xit [c]ustody to [l]ive with [r]elatives/[r]eunification." Mother was living in Georgia with Maternal Grandmother, and Father was living in Tennessee at that time. On September 26, 2012, Ms. Ball prepared a "Case Recording Summary" in which she stated that Foster Parents were "very upset that the [Juvenile Court] did not make a finding of severe abuse." According to Ms. Ball, Foster Mother expressed her intent to ask Mother to allow Foster Parents to adopt the children, expressed her dislike of the in-home worker Family Menders had assigned to Mother, and stated that Mother and Father should not be taught parenting skills because they should already know them.

          In the fall of 2012, DCS attempted to place the children with Mother, who was then living with Maternal Grandmother in Georgia.[10] To do so, the Interstate Compact on Placement of Children Act required DCS to obtain the approval of GDFCS for the placement.[11] In a letter dated October 3, 2012, GDFCS refused to approve DCS's request, stating that Mother "appear[ed] to be continuing the pattern of behavior" that had resulted in the termination of her parental rights to her oldest two children.

         At the end of October 2012, Ms. Ball transferred to another position within DCS, and in November 2012, another DCS family services worker, Kelly Dyer, was assigned to Mother's case. Ms. Dyer had worked as a case manager for DCS for eleven years. After learning that GDFCS had already refused the DCS request to place the children with Mother in Georgia, Ms. Dyer advised Mother to obtain suitable and appropriate housing in Tennessee.[12] Ms. Dyer also continued to assist Mother in making progress on completing the tasks required in the permanency plan. According to Ms. Dyer, Mother completed all the tasks required by the permanency plan, including ongoing alcohol and drug education, Narcotics Anonymous meetings, random drug screens, and completion of a program titled "Celebrate Recovery." Mother also visited with the children and obtained and kept employment.

         Based on Mother's progress on the permanency plan, Mother had been granted unsupervised visitation with the children around September of 2012, before Ms. Dyer was assigned to the case. After receiving the case assignment, Ms. Dyer often made unannounced visits to Mother's home when the children were visiting. Ms. Dyer observed Mother cooking and feeding the children substantive, appropriate food, and she also saw Mother and the children playing together and interacting appropriately. According to Ms. Dyer, the children were attached to Mother, and Mother's home was clean and appropriate for the children. Ms. Dyer occasionally transported the children to and from their visits with Mother. She described Gabriella as eager to visit Mother and upset when the visits ended and the time came to return to Foster Parents' home.

         In contrast, Foster Mother stated that Gabriella initially became upset and did not want to participate in extended visitation with Mother. According to Foster Mother, after the unsupervised visits began, the children regressed to the behaviors they had exhibited upon first arriving at Foster Parents' home, although their behavior would normalize after a few days back with Foster Parents.

          On February 27, 2013, the Juvenile Court held a permanency hearing and found that Mother was in substantial compliance with her permanency plan-meaning that she had cooperated with DCS, completed alcohol and drug treatment, passed random drug screens, obtained employment, and no longer resided with Father. The Juvenile Court found that the primary barrier to reunification at that time was Mother's lack of appropriate housing in Tennessee.

         Shortly after the permanency hearing, Mother obtained appropriate housing in Tennessee. Ms. Dyer stated that Maternal Grandmother and Mother's brother ("Uncle") moved to Tennessee as well to assist Mother. Uncle lived with Mother. Ms. Dyer observed the children interacting with these relatives and believed that, with the help of Maternal Grandmother and Uncle, Mother had established a strong family support system for herself and the children.

         In March 2013, DCS conducted an internal review, confirmed that Mother was continuing to comply with her permanency plan, and confirmed that the goal remained reunification. In June 2013, the children's unsupervised visits with Mother transitioned and expanded to overnight visits. Soon after, DCS began developing a timeline for placing the children with Mother on a trial basis. Acting on the recommendations of the therapist for the children, DCS planned to stagger the children's trial return to Mother's home, referred to as a "trial home visit, " with Gabriella going first, followed a few weeks later by Jude, followed a few weeks later by Chance. DCS settled on July 31, 2013, as the date to begin the trial home visit, with the target date for reunification set as October 2013.

         However, on the date the trial home visit was set to begin, July 31, 2013, Foster Parents, who by then had been caring for the children for sixteen months, filed the petition in circuit court from which this appeal arises, seeking to terminate Mother's parental rights and to adopt the children. As statutory grounds for termination, Foster Parents alleged that Mother had committed severe abuse against Chance as evidenced by his severe malnutrition at the time of removal.[13] Foster Parents further alleged that terminating Mother's parental rights was in the best interests of all the children.

         Within a short time after Foster Parents filed their petition, the juvenile court guardian ad litem filed a petition asking the Juvenile Court to conduct an immediate review of the circumstances and placement of the children.[14] Additionally, on

         September 4, 2013, Mother was arrested and charged with aggravated child abuse of Chance due to his severe ...

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