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In re Samuel R.

Court of Appeals of Tennessee, Jackson

May 14, 2018

IN RE: SAMUEL R., ET AL.

         Session April 17, 2018[1]

          Appeal from the Chancery Court for Shelby County No. CH-14-1417 Jim Kyle, Chancellor

         This appeal involves the termination of a father's parental rights to his two children. The father suffers from paranoid schizophrenia. The trial court terminated his parental rights on the grounds of mental incompetence and abandonment by willful failure to visit and/or support. We reverse the trial court's findings regarding abandonment but otherwise affirm the termination of parental rights.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed in part, Affirmed in part, and Remanded

          William Ray Glasgow, Memphis, Tennessee, for the appellant, David R.

          Adam Noah Cohen, Memphis, Tennessee, for the appellees, Nicholas C. and Julie C.

          Laurie Winstead Hall, Memphis, Tennessee, for the appellees, David R. and Nancy R.

          Brandon O. Gibson, J., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S., and W. Neal McBrayer, J., joined.

          OPINION

          BRANDON O. GIBSON, JUDGE

         I. Facts & Procedural History

         David ("Father") and Julie ("Mother") were married in 2004. They had two children ("Son" and "Daughter"), who were born in 2006 and 2007. Father was physically abusive to Mother on many occasions during the marriage. He was arrested for assaulting Mother in 2007. Father's paranoia and violence escalated in late 2009. In December 2009, Father choked Mother on two occasions until she became numb and disoriented. In early January 2010, Father allegedly brought a rifle into the home and directed Mother to change Son's diaper "for the last time." Father asked if Mother preferred to be shot "up close or far away" and described how he intended to dispose of her body. Father pointed the gun at Mother and instructed her to turn and walk away. Mother slowly walked away as instructed, expecting Father to shoot her. After a few minutes, Father simply put the gun down and sat down on the couch. However, Mother was terrified and left with the children the next morning while Father was asleep.

         Mother reported the incident to police, and Father was arrested and charged with aggravated domestic assault. Mother filed a complaint for divorce days later, on January 19, 2010. An order of protection was entered prohibiting Father from contacting Mother or the children. Father was admitted to a mental health institute for an evaluation of his competence to stand trial and mental state at the time of the offense. Father was examined by professionals who certified that Father was, in their opinion, mentally ill, that he posed a substantial likelihood of serious harm, and that he was in need of care and treatment in a mental hospital. Father was diagnosed with schizoaffective disorder. Based on the evaluation, the criminal court entered an order finding that Father was incompetent to stand trial because of mental illness and that he met the relevant statutory criteria for commitment and judicial hospitalization at the mental health institute. The criminal charge against Father was dismissed.

         After further evaluation and treatment, the staff at the mental health institute determined that Father no longer met the standards for judicial commitment, and he was released into the custody of his father ("Grandfather") around June 2011. Father lived with his parents thereafter. The final decree of divorce was entered on or about July 5, 2012. Father had not seen the children since Mother left the marital home with them in January 2010. Father and Mother entered into an agreed parenting plan, which provided that if Father's primary psychologist, Dr. John Leite, provided written assurance that Father was in an appropriate mental state to exercise supervised parenting time with the children, Father would be allowed "two hours of supervised parenting time per week" over the course of twelve sessions at the Exchange Club. If Father successfully exercised this supervised parenting time, his parents would supervise thereafter, and parenting time could be expanded as the court deemed appropriate.

         On August 21, 2012, Dr. Leite wrote a letter stating that he was working with Father in individual psychotherapy and felt quite comfortable that Father was in an appropriate mental state to exercise supervised parenting time. Father's supervised visits at the Exchange Club began on October 20, 2012. By that time, the children were ages six and five, and they had not seen Father in nearly three years. The visits did not go well. Father was late for the first one-hour visit. He made comments that the supervisor deemed inappropriate and negative. When the supervisor attempted to discuss the issue with Father, their conversation continued to the point that security stopped the visit and escorted Father out of the building. Additional supervised visits were scheduled for one hour every other week.[2] Father did not show up for the second visit, although Mother and the children were there. He failed to show up for another scheduled visit in February 2013. Father attended six more supervised visits between November 2012 and April 2013 without incident, but he was late to four of those six one-hour visits.

         Father's eighth and final supervised visit took place on April 20, 2013. Again, Father was late. During the visit, Son asked for a red drink, and Father gave him one. Daughter said that Son was not supposed to have red drinks because they make him hyper. According to Exchange Club records, Father stated that was "the stupidest thing he had ever heard." When Daughter repeated herself, Father "raised his arms" and told the children that they were with their dad and could do what they want. Father told the children they were being brainwashed. The supervisor intervened, but Father continued to make snide and sarcastic remarks. Father started to argue with the supervisor, who asked Father to change the subject. Then, Father asked the children what they hated most about Mother. The supervisor immediately ended the visit. As the supervisor and the children were walking toward the elevator, Father continued to direct questions to the children and complain about not getting his money's worth out of the visit. Both children were visibly upset. According to Exchange Club records, Father was argumentative, sarcastic, and had an overall negative attitude, raising his voice and using "intimidating body language."

         A few days later, the Director of Visitation Services at the Exchange Club contacted Father to discuss the incident and the children's perception of his behavior. She informed Father that the children reported to their therapist that Father was mean during the visit and said they should hate things about Mother. According to the Director, Father was unable to comprehend how his behavior was negative or how the children were affected by his behavior. When asked if he was willing to apologize to the children, Father responded that he saw no reason to do so and that he would not be returning to visit with them at the Exchange Club. The Director encouraged Father to understand how his children experienced the visit and to continue visiting, but Father was adamant and insisted that he would not continue visiting at the Exchange Club.

         Three months went by with no contact between Father and the children. In July 2013, Grandfather and his wife ("Grandmother") jointly filed a petition to appoint a conservator for Father in probate court. A copy of the petition was mailed to the children at Mother's residence. Grandparents' petition alleged that Father was unable to manage his day-to-day affairs due to mental infirmity. They alleged that Father was diagnosed with paranoid-type schizophrenia and had become "continually more delusional and unreasonable" in his actions. According to the petition, Father was still residing with Grandparents and refused to be examined by a physician or take his medication as prescribed. Grandparents alleged that Father's situation had recently become much worse and that they were concerned for their safety due to Father's verbal abuse and "increasingly delusional state of mind." They claimed that Father's ability to reason and handle his affairs was non-existent.

         During the conservatorship proceeding, Dr. Leite submitted an affidavit stating that Father was not competent to manage or control himself and his affairs, as he was exhibiting delusions of persecution and conspiracy with significantly impaired judgment and insight. The probate court entered an order in October 2013 appointing Grandparents as co-conservators of the person and the estate of Father, finding that Father was a disabled person by reason of mental illness. The order removed from Father and transferred to Grandparents "[t]he right to prosecute and to defend lawsuits; [and] the right to advance [Father's] rights to visitation, or parenting time, with his minor children."

         In their capacity as conservators, Grandparents obtained the records from the Exchange Club regarding Father's supervised visitation. However, they did not file any petition or ask Mother to reinstate Father's visitation. In November 2013, Grandfather wrote a letter to Mother advising her of the conservatorship and their authority to act on Father's behalf regarding the parenting plan. Regarding Father, the letter stated,

It certainly seems evident at this point that [Father] will be disabled for the foreseeable future because of his illness, however, we plan to attempt to get him the medical attention he needs to become more functional and hopefully maintain a relationship with [Son] and [Daughter] in the coming years.
. . . At this time we don't feel [Father] is well enough to visit with them for even a short period of time and we won't allow him to visit them without your consent or if we feel he is not well enough for a visit. . . .
. . . I would also ask that you or your family refrain from contacting or conversing with [Father] due to his illness, any contact will only increase stress on him and may cause unnecessary issues for us. If something needs to be discussed regarding [Father] or the children please, contact [Grandmother] or myself and if you need proof of the conservatorship we will be glad to provide that.

         Around this time, Mother remarried.

         The lack of visitation or contact continued into 2014. In May 2014, Father was arrested for a disturbance in the parking lot of a fast food restaurant. Father refused to leave the premises after requests by the store manager and by police officers, leading to a physical altercation between Father and several officers. Father was charged with disorderly conduct, criminal trespass, resisting arrest, and simple assault. After spending about three months in jail, Father was admitted to another mental health institute in August 2014 for a court-ordered evaluation of his competency to stand trial. Father was "selectively mute" and uncooperative during his evaluation, but he did not evidence any behavior that indicated an imminent threat of harm to self or others or suggest that he was unable to appreciate the wrongfulness of his actions. Accordingly, Father did not meet the criteria for commitment, and he was discharged back to jail on September 9, 2014. Soon after, Father got out of jail and returned to live with Grandparents.

         On September 23, 2014, Mother and her husband ("Stepfather") filed a petition for termination of Father's parental rights and for adoption by Stepfather.[3] By this time, the children were ages eight and seven, and they had not seen Father since the last supervised visit at the Exchange Club seventeen months earlier. The petition alleged that grounds existed to terminate Father's parental rights due to willful abandonment and mental incompetence. The petition further alleged that termination of Father's parental rights was in the best interest of the children. The trial court appointed an attorney for Father and a guardian ad litem for the children.

         One week later, on September 30, 2014, Father was arrested and charged with driving under the influence because he admittedly drove after drinking several margaritas at a restaurant. On May 31, 2015, police officers responded to a report of a suspicious person and found Father trying to get inside the locked doors of a nursing home. Father was delusional and believed he was in danger from "a radiation bomb." The police officers returned Father to Grandparents' home. Later that night, Father jumped in Grandparents' car and drove away on his own. He was found by a sheriff's deputy two hours away at a farm owned by Grandparents in Hardin County, Tennessee. Father was barefoot and walking down the middle of a road at 4 a.m. Father told the sheriff's deputy about the radiation bomb, and he was taken to jail. The next day, Father was again admitted to a mental hospital. Grandfather insisted that Father be required to abide by a mandatory outpatient treatment ("MOT") agreement upon release. Pursuant to that agreement, Father was required to receive his medications monthly by injection or else he would be picked up by the police and returned to the mental hospital. Upon his release, Grandparents arranged for Father to reside alone at a house they owned near their farm.

         Meanwhile, Grandparents were permitted to participate in the parental termination case in their roles as co-conservators with their own attorney in order to assist Father in defending the lawsuit, even though an attorney was also appointed for Father. Mother filed a motion to require Father to submit to a mental examination pursuant to Tennessee Rule of Civil Procedure 35.01, citing his most recent release from the mental hospital and history of mental illness. A consent order was entered providing that a forensic custodial evaluation was necessary and that Dr. Paul Leonard, Ph.D., was appropriate to perform such services.

         Dr. Leonard performed a forensic psychological parental access evaluation. He met with Father on two occasions in June and August 2016. Father partially completed a questionnaire and answered questions during the interviews. However, Father flatly refused to participate in the psychological tests that Dr. Leonard attempted to administer. Dr. Leonard reviewed Father's extensive mental health records and conducted interviews of Mother, Stepfather, Grandparents, and the children. In his report, Dr. Leonard ultimately concluded that Father met the diagnostic criteria for schizophrenia, paranoid-type. Dr. Leonard found that Father was not in an appropriate mental state to exercise supervised visitation after the divorce in 2012. He also found that while Father's MOT program currently ensured that he was medicated, this minimized but did not eliminate his paranoid delusions. Dr. Leonard further concluded that the mandated medication regimen did not improve Father's poor judgment or antisocial attitudes and tendencies. Dr. Leonard found that Father's behavior was not fully explained by his schizophrenia and that he also met the diagnostic criteria for antisocial personality disorder. Dr. Leonard noted Father's twenty-year history of involvement with the police including several violent incidents, disregard for authority across various settings, aggressiveness, rationalization of hurting others, and lack of remorse. Because of these diagnoses and Father's criminal history, Dr. Leonard concluded that Father was not capable of parenting at the present time. And, based on all the evidence, Dr. Leonard opined that Father was not presently in an appropriate mental state to exercise either unsupervised or supervised parenting time with the children, nor would he be in the foreseeable future. Dr. Leonard's report was dated September 12, 2016.

         The trial court conducted a two-day bench trial in May 2017. Father did not attend the trial based on the advice of his psychologist, Dr. Leite. The trial court heard live testimony from nine witnesses, including Dr. Leite, the Director of Visitation from the Exchange Club, Grandmother, Grandfather, Mother, Stepfather, Mother's sister, Stepfather's mother, and a neighbor. The trial court also received into evidence the evidentiary depositions of Dr. Leonard and the therapist who treated the children, in addition to numerous exhibits. By the time of trial, the children were ages 11 and 10. They had not lived with Father in seven years, since Mother left the marital home in 2010 when the children were ages 3 and 2. During that seven years of separation, the children had only seen Father during the eight supervised visits at the Exchange Club, which totaled less than eight hours. The children had not had any contact with Father since those visits ended in April 2013, four years before trial. Father had never paid child support or sent gifts for the children. However, days before trial, Mother received a lump sum check with retroactive disability benefits for the children based on Father's application.

         According to Dr. Leonard's testimony from his evidentiary deposition introduced at trial, Father was quite often delusional during his interviews for the forensic psychological parental access evaluation. He denied objective facts, repeatedly blamed Mother for keeping the children from him, and suggested that he was the victim in this situation. With twenty-five years in practice, Dr. Leonard said, "In all the years I've been evaluating people, he was probably at the top of the list of showing what's called 'pathological denial.' 'Not my fault. Her fault. His fault.'" According to Dr. Leonard, Father exhibited frustration with his MOT program, the injections, and negative side effects and debated whether he should continue with it. Dr. Leonard testified that Father failed to recognize what would happen if he stopped taking his medication. Dr. Leonard was also very concerned about Father's continued use of marijuana and alcohol. He said that Father had "tenuous self-control" already and certainly did not need any less.

         Dr. Leonard believed that Father's failure to follow the rules at the Exchange Club reflected both his schizophrenia and his antisocial personality disorder. He explained that sometimes Father does not acknowledge the rules by his delusions, but often times, he chooses not to follow them. Even considering Father's MOT program participation, Dr. Leonard believed that restarting visits would be "a huge risk" due to the likelihood that Father would "act out." When Dr. Leonard was asked why supervised visitation would be bad for the children, he said, "most importantly, [Father] showed no interest in complying with the rules, making amends, restarting. And that was right from the horse's mouth." According to Dr. Leonard, Father had "no present motivation, " giving Dr. Leonard no reason to believe that supervised visitation would end any differently than it did the first time. Father's description of how he would conduct himself at visitation was troubling to Dr. Leonard and a very important part of Dr. Leonard's decision-making process. Father did not believe he needed any oversight and did not seem to respect any rules that would be imposed. Dr. Leonard opined that Father should not be allowed supervised visits in part due to statements that he might make about Mother. Father made it clear to Dr. Leonard that he was going to visit with his children "and say whatever I want and do whatever I want." Dr. Leonard said, "I think right now and in the immediate future he doesn't seem to be able or willing to have any kind of emotionally healthy relationship with them."

         Dr. Leonard acknowledged that during his interview with Son, Son repeatedly expressed a desire to have contact with Father. However, Dr. Leonard also emphasized that "what children want and what is good for them is not the same thing." Daughter indicated that she was scared and confused during her last visit with Father at the Exchange Club, ...


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