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In re K.Y.H.

Court of Appeals of Tennessee, Nashville

January 23, 2018

In re K.Y.H.

          Assigned on Briefs October 2, 2017

         Appeal from the Juvenile Court for Davidson County No. 2013-5640 Sheila D.J. Calloway, Judge

         This is a termination of parental rights case. The Department of Children's Services filed a petition to terminate the parental rights of C.K.H. (mother) with respect to her child, K.Y.H. The trial court found that clear and convincing evidence supported termination of mother's rights based upon the persistence of conditions that led to the removal of the child. The trial court also found clear and convincing evidence that terminating mother's rights was in the best interest of the child. Mother appeals. We affirm.

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

          Thomas H. Miller, Nashville, Tennessee, for the appellant, C.K.H.

          Herbert H. Slatery, III, Attorney General and Reporter, and Jordan K. Crews, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services.

          Charles D. Susano, Jr., J., delivered the opinion of the court, in which Frank G. Clement, Jr. and Brandon O. Gibson, JJ., joined.




         DCS took custody of the child shortly after her birth. It received a referral from hospital staff that the child, who was a medically-fragile infant, was about to be released from Vanderbilt Children's Hospital and staff was concerned that mother would not be able to care for the child. The child had been in the Neonatal Intensive Care Unit for almost two months because she was born prematurely and had severe reflux problems. As a result, Vanderbilt Hospital staff asked mother to "room-in" with the child to receive the necessary training to properly care for the child's medical needs. Hospital staff reported concerns regarding mother's "irrational thought processes and specifically her failure to follow through with necessary 'rooming in' periods with [the child] prior to her discharge to learn and to become proficient in her necessary medical care requirements." In addition to finding probable cause for emergency removal and the retention by DCS of legal custody, the trial court also ordered that a 90-day trial home visit begin upon mother meeting three requirements: (1) the maternal grandmother being released from the hospital and indicating a willingness to have mother and child in her home; (2) Nurses for Newborns, an organization that provides in-home health assessments of newborns and mothers, education, positive parenting, and referral resources, begin services simultaneously with the trial home visits; and (3) mother and maternal grandmother meeting with the foster parent regarding the child's medical needs and treatments. Mother was also ordered to cooperate with all services.

         A few months later, a trial home visit began in the maternal grandparents' home where mother was staying at the time. DCS retained legal custody and in-home services were in place. A few months after that, however, the trial home visit was terminated at the recommendation of the Nurses for Newborns nurse assigned to the case. The nurse testified that she was concerned about the lack of bond between mother and the child, the child's hygiene and development, and mother's mental health and ability to care for the child. The nurse noted on one visit that mother exhibited "manic tendencies, " a "flight of ideas, " and "couldn't sit still." On another visit, the nurse stated that mother had been recently discharged from the hospital, was slow to respond, and was "not real clear of everything that had happened with her" due to her new medication. On another visit, the nurse stated that mother showed the nurse where mother had cut herself since the last visit and that the nurse had trouble following the mother's train of thought. During that visit, the nurse stated that mother and the maternal grandmother argued, that mother threw her phone, went outside to smoke, and left the child in the playpen. The nurse noted the strained and negative relationship between mother and grandmother. The nurse stated that mother and grandmother would argue and yell and that mother would throw things when she became agitated. The nurse was concerned for the child's safety, even with the grandparents' supervision.

         The nurse from Nurses for Newborns also testified that mother did not apply lotion to the child's skin and did not bathe her often. The nurse observed dry spit-up in the child's hair and "a putrid smell like vomit" on the child's clothes. The nurse testified that throughout the trial home visit period, the child's skin "was always very dry and brittle." The nurse further testified that mother may not have provided the child with the correct type of play, resulting in a developmental deficit. On one visit, the nurse testified that the child was "twisting her hand" and "her arm was stiff." In most visits, the nurse arrived to find the child laying by herself or sitting in her swing by herself.

         The Court Appointed Special Advocates (CASA) volunteer assigned to the case testified that mother seemed overwhelmed due to the child's digestive issues. The CASA volunteer testified that there "wasn't a good place for [the child] in the home. They were sleeping in the living room. They weren't able to establish [the child's] own place in the home . . . ." The volunteer believed that mother was not prepared to care for a newborn, much less a newborn with health issues. She supported terminating the trial home visit.

         During the juvenile court hearing where mother's trial home visit was terminated, Mother acknowledged that she had been hospitalized at Vanderbilt Psychiatric Hospital on multiple occasions. Mother testified that, three weeks prior to the hearing, she had been hospitalized for ten days after witnessing a physical altercation between her friends and others, stating that she "could not handle witnessing her friends being injured." On another occasion, mother deliberately burned herself with a cigarette because she was upset about the trial home visit being disrupted. Mother had a contentious relationship with grandmother, and chaotic circumstances continued in the home since the commencement of the trial home visit. Testimony at trial also revealed that grandmother, who the parties and the court expected to assist mother with the child, mixed her narcotic pain medication with alcohol and was hospitalized at the time of the hearing. Once the trial home visit was terminated, the child was placed in her current foster home, where she has remained continuously ever since.

         Mother's first-born child, G.H., who turned fifteen when K.Y.H. was born, was also taken into DCS custody shortly after K.Y.H.'s trial home visit with mother was terminated. G.H. is on the autism spectrum and had an Individual Education Plan[1] in place before being removed from public school and being homeschooled by mother. G.H. was taken into DCS custody after he threatened mother with a sword. He was then placed in Parkridge Valley Hospital in Chattanooga, Tennessee, for psychological and behavioral issues for nine months. G.H.'s permanency plan required mother to attend family therapy sessions with G.H. at the facility. However, those therapy sessions were unsuccessful. In one session, mother became agitated and took a fetal position on the floor in the corner of the room. In another session, the therapist and clinical team had to manage mother rather than conducting the therapy session. In another session, mother had an altercation with G.H. and "ended up on the floor again, agitated, listening to loud music, [and] arguing with the clinical team." The hospital terminated the sessions because it believed mother's behavior was harming G.H. G.H. attempted to defend mother at trial, but admitted that he did not want to return to live with her. G.H. subsequently moved in with his maternal grandfather until he aged out of state custody at the age of eighteen.

         The juvenile court later found K.Y.H. to be dependent and neglected. The court cited mother's long history with mental illness, her noncompliance with mental-health treatment and medication, her conflicts with grandmother and G.H. in the home, the unsuccessful trial home visit, and her subsequent hospitalization at Vanderbilt Psychiatric Hospital after grandmother and grandfather became concerned about her "erratic behavior and inability to care for [the child]." Mother filed more than one motion for unsupervised visits with the child, which were denied due to mother's disruptive behavior during hearings.

         DCS then filed a petition to terminate mother's parental rights based on persistence of conditions. DCS also alleged mental incompetence but has since dropped that ground. DCS's petition stated that the grounds that led to removal were K.Y.H.'s medically fragile condition, mother's irrational thought processes, and mother's failure to comply with the necessary rooming-in periods with the child prior to her discharge so that mother could learn and become proficient in necessary medical care requirements. DCS alleges these conditions persist based on mother's "erratic behavior and what appears to be inconsistent compliance with taking her prescribed medication."

         Mother acknowledged that she has a long history of mental health disorders, including bipolar disorder, anxiety, depression, and post-traumatic stress disorder. Mother testified that her treating professionals disagreed as to whether she suffered from bipolar disorder or not. Mother's PTSD stems from sexual abuse as a child and teenager. Mother currently receives medication and psychotherapy treatments, but admitted that she has difficulty managing the side effects of her medication and sometimes wishes to be off of medication because of the side effects. Mother testified that she is compliant and stable on her current prescribed psychotropic medication, although she acknowledged that she has had trouble managing her medication in the past.

         Mother admitted to attempting suicide on more than fifty occasions. She later testified that this number was exaggerated to gain admission to the psychiatric ward when she was pregnant with K.Y.H. Grandmother had kicked her out of the house. However, she did admit that she had attempted suicide on at least one occasion while her older, autistic son, G.H., was in the home with her. She also admitted other acts of self-harm, including burning herself with a cigarette when the trial home visit was interrupted. Mother stated her last suicide attempt was five years ago. Mother also admitted to being hospitalized in psychiatric wards on multiple occasions, most recently a few years ago during K.Y.H.'s trial home visit. She testified that she receives a disability check, but is unsure how much the check is and depends on grandfather for money for gasoline and groceries.

         Mother also underwent a parenting capacity assessment for DCS conducted by a psychologist. The psychologist noted mother's estimated fifty inpatient stays since she was eleven years old. He also noted mother's "history of recurrent, severe depression with periods of suicidality and significant deteriorations in her functioning." The psychologist diagnosed her with "Other Specified Bipolar and Related Disorder[, ] Personality Disorder, Unspecified[, ] Posttraumatic Stress Disorder, resolved[, ] Substance Use Disorder, in remission." When asked by the psychologist about her visits with G.H. being discontinued because of her disruptive behavior harming G.H., mother blamed the facility personnel for antagonizing her. She also saw Vanderbilt Hospital staff as being vindictive, rather than well-intentioned, for reporting their concerns about her ability to care for K.Y.H. The psychologist noted that "[e]ven when [mother's] issues are not requiring hospitalization there is evidence that they cause impairments to her judgment and parenting abilities." He also stated in the assessment that mother's "persistent, severe mental health problems . . . have had a significant impact on her ability to effectively parent on a consistent basis." He did note that mother's relationship with grandmother contributed to her stress and destabilization, and that mother may function better in grandmother's absence. The psychologist summarized his findings by stating that mother had an above-average intelligence and seemed to understand the child's needs, but also "has persistent, severe mental health problems that have had a significant impact on her ability to effectively parent on a consistent basis." The psychologist stated further that

All of the available evidence is that [mother's] psychological wellbeing is improved to her baseline. That is, her depression and anxiety are well controlled on her current medication and she has not been confused or hypomanic recently. Also, while [mother] grieves [grandmother's] death, the relationship added significantly to the stress in her life and at points contributed to her destabilization. Thus, in some ways she is better positioned to maintain her current level of functioning than she has been. However, given the severity and persistence of her psychological problems it is likely she will have future periods of hospitalization. She also continues to have significant problems with interpersonal interactions that undermine her ability to parent or use supports such as therapy and case management. Given her history the prognosis for long term improvement to her parenting abilities is guarded to poor.

         Consequently, the psychologist recommended that (1) the family continue regular visitation; (2) mother complete family therapy with G.H.; (3) the return of either child be done through a gradual, well-monitored process extending well into the children's placement with her; (4) mother develop a plan of care for any children in her custody in the event her symptoms worsen or she is hospitalized again; (5) mother complete an anger management class; (6) mother complete a behavioral therapy class to bolster her ability to tolerate stress without acting out; and (7) mother continue medication and psychotherapy treatments.

         Mother's mental health has been more stable since grandmother passed away in late-2014. However, there have been a few concerning incidents since grandmother's passing that have brought mother's mental stability into question. For example, at a hearing in late-2015, during the Nurses for Newborns nurse's testimony, mother made an outburst of derogatory comments, calling the nurse a liar. The court officer called for backup when he noticed mother pull a pair of pliers out of her bag. Mother then had a "meltdown or panic attack" and "stormed out" of the courtroom. G.H., who was present at the hearing, became upset, walked out of the courtroom, and had cut all of his hair off by the end of the hearing. At a child and family team meeting in late-2015, mother became upset with the family service worker because he had failed to timely submit her approval for visitations for the month, resulting in mother's visitations being pushed back to the end of the month. Mother had "a little meltdown, " "stormed out, " and said derogatory things about the worker.

         K.Y.H. has thrived in the foster home where she has resided for the past three years. The Nurses for Newborns nurse noted that the child's growth notably improved after she was returned to her foster home after the trial home visit. She also noted a close bond between the foster parents and the child for the time she observed them. The foster parents have provided grandfather with unsupervised visits on the weekend and mother with separate supervised therapeutic visits. The child was initially very slow developmentally. She was unable to sit on her own until she was approximately sixteen months old and did not begin walking until well after her second birthday. She still wears braces on her ankles to assist her with walking. Prior to her placement with the foster parents, the child had dropped to the second percentile for growth. However, shortly after arriving in the foster home, the child's growth had improved to the twenty-fifth percentile and continued to progress upward from there. The child's developmental screening also increased by sixty points within a short period of time. Her skin was very dry and scaly when she first arrived in the foster home, but has since softened with frequent baths and lotion. The foster mother also testified that "[s]he cried a lot if you interacted and was happier or silent if you left her alone." The foster parents have an adopted son who is about a year and a half older than K.Y.S. The children are very close with one another and view each other as siblings.

         Mother has never requested K.Y.S. for the child's birthday, Mother's Day, or any major holiday other than Halloween. The foster mother testified that they always try to work with mother's schedule for visits, but that their efforts are not reciprocated. The foster mother also noted that the child would return "defiant" from visits with mother because splitting time between the foster family and mother confused her. The foster mother wishes that mother would take the child's nap and bedtime into consideration, since mother does not work and can visit anytime. She testified that mother often returns the child cranky and dirty or wet despite requests from them that mother feed and bathe her if visits run into the evening. The foster mother testified that mother has stormed out of court hearings and child and family team meetings, the last being in August 2016. The foster parents are both employed full-time, financially stable, capable of meeting all of the child's needs, and, in the ...

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