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In re Mack E.

Court of Appeals of Tennessee, Knoxville

February 9, 2018

IN RE MACK E., ET AL.

          Assigned on Briefs January 3, 2018

         Appeal from the Juvenile Court for Jefferson County No. 17-00047 Dennis Will Roach, II, Judge

         Barbara E. ("Mother") appeals the termination of her parental rights to the minor children Mack E., Hannah E., Amber E., Donnica B. and Barbara Jean B. (collectively "the Children"). Donald B. ("Father") appeals the termination of his parental rights to the minor children Donnica B. and Barbara Jean B. We find and hold that the State of Tennessee Department of Children's Services ("DCS") proved by clear and convincing evidence that grounds existed pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1), (g)(2), and (g)(3) to terminate both Mother's and Father's parental rights and that it was proven by clear and convincing evidence that the termination of both Mother's and Father's parental rights was in the Children's best interests. We, therefore, affirm the June 28, 2017 order of the Juvenile Court for Jefferson County ("the Juvenile Court") terminating Mother's and Father's parental rights to the Children.

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

          Garry L. Chin, Knoxville, Tennessee, for the appellant, Barbara E.

          Brett J. Bell, Dandridge, Tennessee, for the appellant, Donald B.

          Herbert H. Slatery, III, Attorney General and Reporter; and Erin A. Shackelford, Assistant Attorney General, for the appellee, State of Tennessee Department of Children's Services.

          W. Keith Repass, Dandridge, Tennessee, Guardian ad Litem.

          D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which ANDY D. BENNETT and J. STEVEN STAFFORD, P.J., W.S., joined.

          OPINION

          D. MICHAEL SWINEY, CHIEF JUDGE

         Background

         The Children were taken into State custody in April of 2014 due, in large part, to environmental concerns, and were placed in a foster home and found to be dependent and neglected. A trial home visit with Mother and Father was attempted from June to July of 2015, but was disrupted. DCS filed a petition in January of 2016 seeking to terminate the parental rights of Mother, Father, and Robin E., the biological father of the three eldest of the Children.[1] After a trial in June of 2016, the Juvenile Court terminated Robin E.'s parental rights, but found that no grounds for terminating Father's parental rights had been proven and that although DCS had proven abandonment by willfull failure to provide support as to Mother, that it was not in the Children's best interests for Mother's rights to be terminated at that time.

         A second trial home placement with Mother and Father was attempted after the June 2016 trial, but was disrupted in September of 2016. In January of 2017, DCS filed another petition seeking to terminate Mother's and Father's parental rights to the Children. The case proceeded to trial over multiple days in May and June of 2017.

         At trial, Stacy Weaver, who works with Freewill Baptist Family Ministries, testified. Ms. Weaver stated that she "would visit the children on a weekly basis, checking on their well-being, " and that she had done so for a little over a year. During the last trial home placement, Ms. Weaver visited the home twice a week. Ms. Weaver explained that: "at some point [she] was moved to residential for a few weeks, and Teri Slone (phonetic), [her current] supervisor took over on some of those visits, but then [Ms. Weaver] was back on the case in September again. So it was, like, a split time between Teri and [Ms. Weaver]."

         Ms. Weaver testified that there were times during her visits when Mack, the oldest of the Children, was not at home because he had walked to someone else's house. Ms. Weaver stated that during those times, Hannah "would usually be home alone. And Amber would take off and go somewhere in the neighborhood to another friends [sic] house. She was not being supervised. Amber liked it because she said there were no rules, and she got to do what she wanted." At that time Amber was 11 years old. Ms. Weaver stated:

And then Hannah would be left at home to be alone, and I know she was afraid to be home alone. She had told me she was, but sometimes she would be there by herself late at night; nothing to eat. She didn't like to try to find - - hadn't really been taught how to cook or shown what to cook, or there was nothing left for her to be able to heat up. She said the food that was left in the refrigerator - - and she showed it to me. She lifted the containers out of the refrigerator. They were styrofoam containers from Dixie Stampede full of leftovers. But she would pull them out and show them to me, and there was mold growing across the top of some of the food and roaches scurrying from the containers as soon as she lifted the lid off.
So I advised her at that time to throw them away. And so we stood there with the trash bag and threw the molded and bug-infested food in the trash.

         Ms. Weaver was shown photographs, which she stated that she took in September shortly before the disruption of the last trial home placement. She explained:

These look like the pictures that I took in September, I believe it was, showing a bottle of chemical. I don't know what it was, but it was in the little girl's bedroom sitting on the floor beside of their dresser. And it concerned me because it wasn't put up or locked out of their safety, but it was on the floor where the little girls could get to it.
These were roaches along the ceiling, hiding in the corners of the ceiling.
This is Mack's room and that's his xbox, and the roaches were going in and out of the xbox.
This is the family's oven. I opened the door and wasn't able to get a picture of it because they moved so fast, but when I opened the door, there was a pile of roaches on the door that I thought at first was a swarm of bees. It was that big of a bundle of roaches. I immediately let the door go and screamed.
Mack was laughing at me. When I opened it again to take a picture, there was still roaches along the side of the oven. And they can be seen there in those pictures.
This one was taken - that's also the oven, and the roaches that were crawling around through the oven.
This was a tote bag that was sitting on the kitchen table, and the roaches were going in and out of the tote bag. It had toys in it.
This was the oven door and the cupboard with the roaches crawling in and out of the food cupboard and the filth that was all along the counter.
That was of me trying to open the door without getting a roach on me, but it was standing there staring at me.
These were in the microwave. These were live roaches in the microwave. And this is their food cupboard and that was a can of salmon. I mean, there was just some odds-and-ends foods that the kids wouldn't eat. But the roaches were crawling across the cans of food.
This was directly on the stove, the roaches feeding on what looked like left-over egg or something. Roaches on the back of the stove. Roaches on the bread package and getting into the plastic, and crawling around the child's toy.
And these pictures are of Barbara Jean, the little one. These are of the sores that covered her legs. And she would sit and pick at them, because they itched so bad, and they covered, you know, both legs.
And I believe this was Donnica. And those were the sores that were on her legs as well, but those sores continued on up to the tops of her leg and onto her little bottom. And they were -- it took quite a while to get those treated.

         Ms. Weaver explained that the two youngest of the Children, Donnica and Barbara Jean, usually were not in the home when Ms. Weaver visited. She stated:

There was one time I went, and they were on the floor asleep. They did not sleep in their beds. They slept on the living room floor.
I remember this because during this visit I was horrified by the roaches that were crawling around on the floor by the children. And I was over there trying to stomp and kill the bugs before they crawled across the babies that were sleeping on the floor.

         Ms. Weaver testified further about the condition of the home and stated:

Pets were an ongoing issue due to the unclean home. There was piles of dog food stuck to the carpet. Some of it was molded so it had been there for a little while.
There was a very strong urine smell in the home that you could actually smell before you even got through the door. You could smell it outside the odor was just so overwhelming, and I believed it was not healthy for the children to be in that type of environment with their -- with the breathing. There were hairballs from the pets on the children's beds. The dogs were infested with fleas, and they also had cats in the house.

         Ms. Weaver stated that she believed that Mother and Father may have gotten rid of some of the animals, but stated that they still had cats in the house and had 40 or 50 pound bags of cat food and "always a bowl out with food in it. Even though we didn't actually always see the animals, there was food and evidence of those animals there." Ms. Weaver testified that Mother and Father then got another dog, which now lives with them.

         Ms. Weaver testified that there were issues with the Children's hygiene. She stated: "The children did not have any supervision so their hair was not brushed. Their teeth were not brushed. Their clothes were dirty or they would wear clothes that weren't theirs because they couldn't find anything clean. They went to school this way."

         Ms. Weaver visited the home one time after the last trial home placement disrupted. This visit occurred in early April of 2017. Ms. Weaver testified about the visit and stated:

Not a lot had changed. Again, as you approached the door, you can smell the odor. The outside of the home is littered with trash and broken glass so there's no safe place for the kids to play. There's like old metal and just scrap. I remember seeing broken lightbulbs and things like that leading up to the house.
And once you get inside the smell is overwhelming. I don't know if they had just fumigated because they knew we were coming, but there was a very intense smell. It was kind of an odd smell. But you could also pick up the smell of mold. You could smell urine, feces from the pets. And then it was almost like a sickening flower smell because in every room of that house was a wax warner with the smells different -- I mean, it was just overwhelming. It made it difficult to breathe in the home.
A lot of the clutter had been pushed back to open up the floor. The dead bugs were everywhere. So that's why I suspected they had just fumigated, because no one had bothered to clean them up. They were all along the floors, all along the baseboard trim in the doorways, laying on --dead bugs on the kitchen counter and on the tables and along the TV. I mean, everywhere you looked there were dead bugs.
In addition to that there were still some survivors, some live bugs coming out by the door in the kitchen. There was still some surviving roaches that were coming out. They looked like very young ones, babies.
In the bedrooms I remember it looked like large, giant leaf bags, the large white trash bags, stuffed into the closets tight as they could get them, stuffed clear to the top of the closets. We asked what was in the bags, and they said clothes and stuffed animals. So they had just stuffed everything in closets and pushed the doors shut. Some of the doors were not able to be closed. They were bulging.
The children's beds -- I went in and pulled back the blankets and found dead roaches in the beds, dead spiders, some little hairballs from the dog that had dog poop stuff in them, just spiderwebs all around the bedrooms in the corners in the rooms. Dead spiders everywhere.
And then again some surviving roaches would be coming out underneath the furniture or out of closets. The house was kept very dark. We had to ask for the lights to be turned on. Even with the lights on it was still difficult to see, because it's so very dark in there.
There was about I would say at least eight roach hotels on the kitchen counter alone, and they were placed near food to draw them in I guess. I looked in the refrigerator, and there were still remains of dead bugs and their droppings in the refrigerator.

         Ms. Weaver testified about the conditions prior to the disruption of the last trial home placement and stated:

I was there and saw what they had to cook with my own eyes and helped Hannah come up with a meal because they were so hungry.
But Hannah was the one that was usually left to try to find something for her and Amber. The two little ones were not there so she didn't have to feed them. And Mack would go off and find something on his own at a friend's house.
But she would -- a lot of times they would eat snacks. They would eat chips or snack cakes or something like that, because there wasn't a lot of food that they could cook. Items in the freezer were big items that a child would not be able to prepare.
In the cupboards there was -- like we saw in the picture earlier. It was like cans of salmon. There was cranberry sauce. There would be like a can of corn, just odds and ends of things that Hannah said mama had picked them up from the food pantry. So it was a lot of unusual items. I think there was even coconut milk in there.

         Ms. Weaver described helping Hannah cook a meal during one of her visits to the home and stated:

I had - - I taught her - - you know, as we pulled the dishes out - - the pans out to cook the food, she had to rewash them because there were roaches in the pans. So she stood there and washed them, and I dried them. She would take out a spoon, and we had to flick the roaches off of the spoon and wash those.
We found a package of pasta in the refrigerator that had not been opened. So we got that and we boiled that. She didn't know how to - -what to do with it or anything so I was showing her how to fix that. We found a small can of spaghetti sauce in the cupboard and a can of corn. So I showed her how to open those cans and how to season them. And we still had to wash more dishes before we could put any food into them.
As the food was cooking on the stove, the steam and the smell of the food was going through the stove in the kitchen, and it was drawing in the roaches. And so I was standing there at the stove, trying to protect the food. The roaches were hanging off of the stove hood waiting to drop into the food. And I would say there was at least a dozen or more roaches hanging from the stove - - the range hood. They were on the counter. They were in the sink. They were everywhere so - -

         Ms. Weaver testified that the Children stated after the last trial home visit was disrupted that they do not want to return to the home. When asked if the Children missed anything about home, she stated:

Hannah has told me that the one thing that she misses is going to Dollywood with the free passes from Dixie Stampede, and she misses all the visits to Taco Bell all the time. But she did indicate that once that money is spent then there's nothing left to buy the things that they need more for the family. So she said that's the only thing that she misses.
Amber said she misses being able to run around through the neighborhood and go where she wants and not having like to -- not having rules. She could go where she wanted and stay out as late as she wanted because there was no one to keep her at home.

         Ms. Weaver also visited Father's mother's house, where the youngest two of the Children, Donnica and Barbara Jean, spent much of their time, and she stated:

There was a time or two when I had to go to grandma's home to see the girls, because I had to see them twice a week. Actually I was - I've lost track of how many times I've been there, but I did go to grandma's house and see the girls. And when you walk into the home, you can smell the strong smell of cigarettes. She stopped when I would come in, and you could see the ashtrays sitting around that were full. And she's on oxygen. But that's where Donnica and Barbara Jean were staying.

         Ms. Weaver testified that the Children have spoken to her about being verbally abused. She stated:

Amber, Hannah, and Mack were verbally abused. Mack said that he knew that -- he had been called names, but he didn't want to talk about it. He tried to avoid the subject with me, but he said that he had been called names. He said, "I'm just going to leave it at that."
Hannah said she had been referred to as a bitch and said that --Amber said that she had been called a jerk and a bitch. And both girls knew that Mack had been called names, but they would not repeat the words. They said they would get in trouble for even writing those words down. So I guess we have to use our imaginations on that.

         Ms. Weaver testified that Hannah had talked to Ms. Weaver and:

She said she felt like she was not trusted at home, that nobody believed her. She said it was a weird kind of love. She said when she's at the [foster] home, that's a special kind of love that's like no love she'd ever felt before.

         Ms. Weaver also testified:

Amber said that when she is at home in mama's house, she would often get things thrown at her. Mack was the worst at it. He would throw a hairbrush at her and hit her in the head with tennis balls. He would throw whatever at her, just to make her mad. And Amber stated that mama would just turn her head.
Mack later told me that he knew it was wrong. He was kind of testing things to see what he could get by with. He said he was -- there were no rules, and it seemed like they were letting him get by with everything because they didn't want to make him mad. He said it seemed like if they could keep him happy, he would be able to keep the siblings happy, and everybody would want to stay. So they ignored a lot of the actions that Mack did against Amber. And Amber was the one that was getting hurt.

         Ms. Weaver further testified:

[Amber] told me that if she would ever try to talk to mama and mama didn't like what she was saying, she would tell her that she was being rude, or she would be self -- was being selfish. And a lot of times she would whup her.
So she said so that she wouldn't get whupped anymore she quit talking to mama and quit talking about her feelings. But she said when she's in the foster home, [the foster mom] encourages them to talk about things. And they sit on the couch and talk about how they're feeling, and they are supported and given ideas of how to handle various situations and not punished.

         Ms. Weaver stated that during the last trial home visit prior to its disruption the Children appeared "very much depressed, not feeling good and confident about themselves." She stated: "They were struggling in school. There was no one to sign their papers for them for school; no one to pay their fees; no one to do this or that. And they were wanting to be on basketball teams. They were needing this or that for school, " but often they wouldn't see Mother or Father until the weekend.

         When asked to describe the Children's morale in the foster home, Ms. Weaver stated:

Very confident. I saw Hannah standing tall and proud in her prom gown, and then her hair is just fixed beautifully. She's been taught how to put on her makeup. She's very confident and very proud of what she's becoming. She is a star basketball player. Her teachers speak very highly of her. She is very clean, always smells good. Her clothes are perfect all the time. She is becoming a beautiful young woman.
Amber -- her grades have turned completely around. She is getting A's. The teacher said that she is just making wonderful progress. She was very pleased with how she was able to come back and just pick up and just turn a phase completely around.
She's developed more of a personality and likes and dislikes and learning about friendships and trusting and creating a bond with the foster parents. She's becoming very confident.
Donnica -- when she was back at home, she was still just like a baby. I mean, it was difficult to understand her. She was overweight. She wasn't doing a whole lot, just not a lot of -- and when she went back to the foster home, she got enrolled in pre-K. And the teachers have said that she's become a leader in the classroom. She is befriending everyone. She looks out for the others in her classroom, almost in a motherly style, looks out for the underdog and is taking charge.
She is getting caught up in her curriculum as far as what she had missed earlier in the year until the time she was able to enter pre-K. And she made up that difference. She's smart.
Barbara Jean is still learning to control her temper, but she's still a baby and has a long ways to go. But I noticed that her speech is improving, and she's becoming more open and more talkative and seems to be confident in herself.
Mack is the one that we have seen a huge change in. Mack has taken some pride in himself. He's a clean-cut young man and is passing all of his grades -- or all of his classes and has actually signed up with a recruiter for the U.S. Air Force and is talking about a career in the Air Force.

         Ms. Weaver testified that she does not believe it is in the Children's best interests to return to Mother and Father. She testified that Mack, Hannah, and Amber have expressed that they don't want to go home, and that Donnica and Barbara Jean are too little to be asked about their preference.

         Karen Hudson, a family services worker with DCS, testified that she was assigned to the Children's case in March of 2016. Ms. Hudson visited the home ...


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