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In re Damon B.

Court of Appeals of Tennessee, Jackson

June 25, 2018


          Session February 21, 2018

          Appeal from the Circuit Court for Gibson County No. 8885 Clayburn Peeples, Judge

         Parents appeal the termination of their parental rights to their two minor children. The children came into the custody of the Department of Children's Services ("DCS") after receiving a referral of domestic violence and subsequent concerns raised about the parents' drug abuse and mental health. The children were adjudicated dependent and neglected in juvenile court. Several permanency plans were developed and monitored by DCS, all of which listed goals of good mental health, a safe environment free from domestic violence, and a drug free home. DCS filed a petition in circuit court to terminate the parents' rights to the children on grounds of (1) abandonment by failure to provide a suitable home as to both parents; (2) abandonment by incarcerated parent as to Father; (3) substantial noncompliance with permanency plan as to both parents; and (4) persistence of conditions as to both parents. A guardian ad litem was appointed to represent the children in both the juvenile court dependency and neglect case and the circuit court termination case. The guardian ad litem filed a motion in juvenile court to modify the parents' visitation, based in part on her personal observations. Father filed motions to disqualify the guardian ad litem in both juvenile and circuit court, asserting that the guardian ad litem began functioning as a necessary witness. The juvenile court granted the guardian ad litem's motion to modify the parents' visitation and denied the father's motion to disqualify the guardian ad litem, specifically noting in its ruling that the court excluded any personal observations by the guardian ad litem. Thereafter, the circuit court also denied the father's motion to disqualify the guardian ad litem, holding that the guardian ad litem was not a "necessary witness" as required under Tennessee Supreme Court Rule 8, Rule of Professional Conduct 3.7(a). Following a trial, the circuit court found that DCS had proven the grounds of abandonment for failure to provide a suitable home, substantial noncompliance with the permanency plan, and persistence of conditions, and that termination was in the children's best interest. Based on these findings, the circuit court terminated both parents' parental rights. We affirm.

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

          Harold R. Gunn, Humboldt, Tennessee, for the appellant, Jamie W. [1]

          Alexander D. Camp, Jackson, Tennessee, for the appellant, Michael B.

          Betty S. Scott, Medina, Tennessee, Guardian Ad Litem for Damon B. and Elijah B.

          Herbert H. Slatery, III, Attorney General and Reporter; and W. Derek Green, Assistant Attorney General, for the Tennessee Department of Children's Services.

          Frank G. Clement Jr., P.J., M.S., delivered the opinion of the court, in which Brandon O. Gibson and John Everett Williams, JJ., joined.


          FRANK G. CLEMENT JR., P.J., M.S.

         Jamie W. ("Mother") and Michael B. ("Father") are the unmarried parents (collectively, "Parents") to two minor children, Damon and Elijah B. In May 2015, Father contacted DCS, alleging that Mother had attempted to shoot Father and that Parents were unable to care for the children due to Mother's psychological issues and Father's physical ailments. During DCS's subsequent investigation, Parents reported multiple instances of domestic violence. Law enforcement had been called on the family over ten times during the previous two years, resulting in seven arrests and Father's conviction for domestic assault in February 2015. Parents admitted to an extensive history of substance abuse and currently using marijuana and cannabis oil to treat chronic health conditions.[2] Parents also reported having untreated mental health issues; Father allegedly had PTSD, and Mother reported a history of suicide attempts.

         In late May 2015, DCS began in-home family counseling after Parents admitted that they needed assistance. Due to Father's comments about wanting to kill or poison Cody, Mother's oldest child from a previous relationship, Parents agreed that the children's safety required Father to leave the home; however, Mother later notified DCS that Father refused to leave and would not allow her to leave either. Because of Parents' issues with domestic violence, drug use, and mental health concerns, the children were removed into DCS custody on July 2, 2015. Two weeks later, then five-month-old Elijah tested positive for marijuana. In an order entered on September 16, 2015, the juvenile court adjudicated the children dependent and neglected.

         On November 1, 2016, DCS filed a petition in circuit court to terminate Parents' rights to the children, on grounds of (1) abandonment by failure to provide a suitable home as to both Parents, (2) abandonment by incarcerated parent as to Father, (3) substantial noncompliance with permanency plan as to both Parents, and (4) persistence of conditions as to both Parents. Trial was held July 28, 2017, before the Gibson County Circuit Court, where numerous witnesses testified.

         Tracy White was the child protective service worker with DCS assigned to investigate the family's case when it was initially reported in May 2015. According to Ms. White's testimony, Father initially contacted DCS with concerns about his children. Ms. White stated that, in Father's words, "the children would be better off in the State's custody than with [Mother]," and that Father was "currently afraid to leave them in [Mother's] care." During her initial interview with Parents in May 2015, Ms. White testified that both Mother and Father admitted they had a history of drug use, and Father described himself as a former "crack head." Both Parents agreed to submit to an initial drug screen which came back positive for marijuana and opiates. Ms. White testified that then five-month-old Elijah also tested positive for marijuana.

         Ms. White further stated that Parents reported several instances of domestic violence to her, including "physical violence and threatening with knives and guns" with the most recent incident occurring on May 22, 2015. Ms. White testified that Parents described the incident as police responding to a "physical altercation" between Father and Cody - during which Mother brandished a knife and threatened to stab Father if he hurt her son. Cody reported that Father was the primary aggressor. Ms. White confirmed that the two younger children were present during this incident. Ms. White described another incident where Father slapped and threw a mug at Mother while she held Damon, shattering glass over Mother and child. Parents admitted to Ms. White that theirs was "not a healthy home situation." Father wanted Mother to get psychological help, and Father believed he needed medical treatment for his Hepatitis C. Parents told Ms. White they would need assistance with the children in order for that to happen. Ms. White set up counseling services for Parents and coordinated services through DCS for Damon, who was developmentally delayed.

         By June 2015, conditions with Mother and Father had not improved. When Ms. White went to meet with them, "they both agreed that the two of them together was not a safe environment for the children." Ms. White discussed with Mother and Father how they could keep their children safe and allow the children to remain in Parents' custody. Initially, the plan was for Father to move out. However, Ms. White testified that Mother reported to DCS that Father "was not gonna leave" and "wouldn't let her leave if she tried," and so on July 2, 2015, the children were removed into DCS custody. Following DCS protocol, Ms. White's involvement with the case ended once the children were removed from the home.

         Stephanie Richardson was the case worker assigned when the children came into DCS custody. She worked with the family from July 2015 to April 2017. Ms. Richardson testified that domestic violence, substance abuse, and mental health concerns were the issues that brought the children into DCS custody. Ms. Richardson helped to develop a permanency plan with Parents, which is a contract outlining responsibilities and goals for Mother and Father to achieve, with the end goal in this case aiming to reunify Parents with their children. Ms. Richardson testified that initially, the permanency plan specified that Parents pay child support; they were asked to maintain a safe and stable home for the children and asked to visit regularly with the children; Parents were asked to complete mental health intakes and follow through with any recommendations such as counseling; they were asked to attend counseling to specifically address domestic violence; they were also asked to complete an alcohol and drug assessment and any recommended treatment as well as comply with random drug screens; and finally, they were asked to refrain from illegal drug use and domestic violence.

         In July 2015, the children were placed in custody with the foster parents and began having bi-monthly supervised visits with Parents.

         During a visit in January 2016, Ms. Richardson testified that DCS called law enforcement after Father, "crying and cursing," got into the foster parents' car with the children and refused to leave. Ms. Richardson stated that the foster mom came back into the building to explain what was going on and told Ms. Richardson that she was scared and didn't know what to do. The permanency plan was revised later that month to forbid Father from putting the children in the car after visits. It also added that Parents refrain from discussing the case with the children and required Parents to complete a psychological evaluation with a parenting component and follow recommendations. At that time, Parents had begun parenting classes, and Mother had one class left to complete.

         Parents completed their mental health intakes in August 2015 and reported to DCS that they attended counseling from August to December 2015. However, in January 2016, Ms. Richardson learned that Mother had actually only been to one counseling appointment and Father had two or three appointments. The counseling center had also permanently discontinued services for Father due to his multiple absences. In June 2016, Ms. Richardson followed up with a new counselor Father was seeing and learned that Father failed to mention his domestic violence issues to the counselor, focusing exclusively on his perceived health problems instead.

          Ms. Richardson met regularly with Mother and Father to discuss their progress in reaching the goals of the permanency plans. Ms. Richardson testified that since the children came into DCS custody, Parents were asked to complete ten to twelve drug screens. In that time, Mother had one negative drug screen, all of Father's were positive, and both Parents refused to submit to drug screens on multiple occasions. In Ms. Richardson's professional opinion, Parents have not accomplished goals in the permanency plan to create an environment in which she felt it was reasonably safe to return the children to Parents' custody. Specifically, Ms. Richardson testified that neither parent has consistently attended counseling or addressed their drug and alcohol issues.

         William Beyer is a licensed senior psychological examiner, health service provider, and licensed professional counselor. Mr. Beyer testified that on March 30, 2016, at the request of DCS, he performed a psychological evaluation with an assessment component on each of Parents. Mr. Beyer testified that in performing these types of evaluations, he has very little access to outside information and had to rely solely on what Mother and Father disclosed to him.

         Mr. Beyer testified that Mother reported "significant conflicts" in her relationship with Father with "pretty bad episodes" of domestic violence after the children were born, but she insisted that it "never got physical after that." Mother indicated to Mr. Beyer that her relationship with Father "had been quite chaotic and that she was making some attempt to kind of separate herself from him." Mr. Beyer's testimony highlighted a few key points where Mother was not entirely forthcoming in her evaluation. Mr. Beyer stated that Mother never told him that she had already lost custody of two other children, nor did Mother disclose that she filed several orders of protection against Father in their ongoing issues with domestic violence. And while Mother admitted to testing positive for marijuana after a trip to Colorado, she did not disclose to Mr. Beyer that she tested positive for codeine in November 2015 or for methamphetamine in February 2016.

         Mr. Beyer diagnosed Mother with major depressive disorder, generalized anxiety disorder, and PTSD. He explained that Mother suffered from "learned helplessness," where "a long pattern of abuse" causes a person to feel incapable of "being assertive or escaping." Mr. Beyer recommended that Mother receive trauma-focused counseling and stressed that it was critical for her to remain free from alcohol and drugs. Mr. Beyer further recommended that Mother remain under psychiatric care in order to address her anxiety and depression, which are illnesses that "can become progressively worse over time and further impair decision making." Mr. Beyer opined that moving away from Father - whose personality would create ongoing conflicts in raising the children - would be an important step in establishing appropriate boundaries. At the time of his evaluation, Mr. Beyer testified that Mother and Father's relationship did not seem healthy because of a pattern of conflict between the two.

          Mr. Beyer testified that Father was "very fervent" in his discussions about having Hepatitis C, how cannabis oil played a significant role in his health, and that it was a cure for Hepatitis C. Throughout his interview with Father, Mr. Beyer stated that he would ask Father a question, and it would repeatedly lead back to Father's Hepatitis C and his use of cannabis oil. Mr. Beyer testified that he had to redirect Father to stay on topic. Mr. Beyer's testimony showed that Father was likewise not entirely honest during the evaluation. Mr. Beyer testified that while Father acknowledged using alcohol only prior to the children's birth, he claimed to have prescriptions for benzodiazepines and oxycodone and otherwise denied a history of drug use. Father never disclosed to Mr. Beyer that he had a history of addiction treatment. When asked about Elijah testing positive for THC or marijuana in 2015, Father told Mr. Beyer that the only way Elijah could have tested positive for the drug was that Father must have transferred some cannabis oil residue from his finger onto a baby bottle while cleaning it.

         Regarding domestic violence, Father reported to Mr. Beyer that Mother slapped him and would sometimes call the police on him, but Father denied any domestic violence since the children's birth or that his arguments with Mother were ever physical. However, Mr. Beyer also testified that Father admitted calling DCS in 2015 with concerns that his children might suffer "due to the unresolved problems between [Mother] and [Father]." When Mr. Beyer asked Father about his prior criminal history, Father mentioned having one criminal charge "during the time [he] was at [his] sickest," but neglected to disclose his other arrests for assault, aggravated assault, vandalism, and DUI.

         Noting that Father found difficulty accepting responsibility, Mr. Beyer diagnosed Father with a histrionic personality disorder, potentially overlapping with narcissistic personality. Mr. Beyer opined that treatment would be difficult because personality disorders are "very difficult to overcome" even over a "long time span of intensive counseling," and those with a histrionic personality disorder in particular are "not ... willing to entertain alternative viewpoints … tend[ing] to place blame on the other individuals for their own failings or shortcomings." But Mr. Beyer felt that treatment would not be impossible, adding that Father would need to work on controlling his frustration and his temper, as "his ability to work effectively with [Mother] and DCS will hinge on his ability to demonstrate self-control even when he disagrees with others."

         The permanency plan was revised in April 2016 to add the specific treatment recommendations of Mother and Father's psychological evaluations with Mr. Beyer. Mother's additional action steps required that she complete therapy to address her depression and PTSD and remain under the care of a psychiatrist. Father's additional action steps required that he complete counseling to address grief and loss and controlling his frustration and temper. Due to Father being "verbally aggressive" toward the foster parents, the team also decided that Father would participate in Child and Family Team Meetings by phone.

          In May 2016, Father moved next door to Mother's home in the public housing complex where she lived after the children's removal. The following month, Mother obtained a year-long order of protection against Father, alleging that he had threatened her and her brother-in-law with a rifle.

         David French, a foster care counselor with Youth Villages, began supervising the children's visits with Father in the summer of 2016 because the foster parents no longer felt comfortable doing it themselves. Mr. French described multiple incidents during which Father became irrational, volatile, and loud during visitations. Mr. French testified that Father refused to exit the foster parents' vehicle on multiple occasions and sometimes became "verbally aggressive" with the foster parents. Mr. French stated that Father's behavior made the children "fearful" during visits and especially upset after they were over. Both children experienced diarrhea on the way to and from visits, and Mr. French testified that they would not fall into a normal routine or behavior for several days, during which Damon would bang his head on the floor and walls. Mr. French testified that he recommended that Father's visitation be stopped "due to the nature of the trauma it was creating for the children."

         The permanency plan was again revised on June 30, 2016. It added that Parents participate in services with Youth Villages to address positive parenting skills and emphasized that they resume the parenting classes that they had nearly completed.

         In August 2016, the juvenile court found that Father was refusing drug screens, attending counseling only inconsistently, and that he had been "increasingly non-compliant with [DCS]." That same month, Father was incarcerated for ten days for violating the order of protection after Mother gave him a ride to court.

         Shortly before DCS petitioned to terminate Mother's and Father's parental rights on November 1, 2016, Parents resumed counseling. Mother inconsistently saw Sonya Goodrich to address Mother's past trauma, PTSD, domestic violence issues, and drug use. While Mother had domestic violence issues with others, Ms. Goodrich found that Father "was a big part" of the significant trauma Mother had experienced throughout her life. Ms. Goodrich testified that Mother disclosed "severe beatings" by Father prior to the children's birth as well as more recent incidents of domestic violence. In March 2017, Mother reported to Ms. Goodrich that Father was harassing and stalking her. Mother also claimed that she had quit using drugs and was passing her drug screens, which Ms. Goodrich later discovered was a lie. In actuality, during the timeframe Mother was seeing Ms. Goodrich, from October 2016 to April 2017, Mother refused three drug screens and tested positive for methamphetamine, amphetamine, and marijuana. Ms. Goodrich ultimately reported to DCS that Mother did not complete any of her treatment goals.

          On a referral from Ms. Richardson to address the ongoing domestic violence, Father met with licensed therapist Alvin Bonds approximately six to eight times between October 2016 and July 2017. Mr. Bonds focused his treatment on anger management and diagnosed Father with severe cannabis use disorder, noting that marijuana was not appropriate for Father to use while parenting due to its "detrimental" effect on a parent's faculties and ability to focus. When asked whether Father was willing to stop using cannabis oil or marijuana, Mr. Bonds testified that Father's response was, "not at this time."

         In November 2016, Ms. Richardson set up an appointment for both Parents to address domestic violence issues with Mr. Bonds. Mr. Bonds testified that neither parent reported any physical violence. Father explained to Mr. Bonds that the children were removed due to lead poisoning and "consistent turmoil" between himself and Mother. Father failed to disclose that the police had been called during his arguments with Mother or that he had multiple charges for domestic assault in the previous four years, including one conviction after the children were born. Neither Parent disclosed to Mr. Bonds that Elijah had tested positive for marijuana, and while Father was very open about his cannabis oil and marijuana use in treating his Hepatitis C, Father failed to report that he had also tested positive for methamphetamine in June 2017. Mr. Bonds stated that Father denied any substance abuse and denied any physical aggression towards Mother. Mr. Bonds observed that Mother and Father's relationship is "definitely one that is unhealthy, so it is a positive thing they are separated and no longer together."

         The foster mom testified that the children have been with her and her husband for a little over two years. She explained that Damon was developmentally delayed when he initially came into their custody but testified that now both boys are above average. The foster mom described behavioral incidents with the children after visits with Mother and Father. She stated that the children were "very violent and would hit each other," they would get in trouble at school, and would complain of having stomachaches and diarrhea. This was consistent after visits with Parents; however, after the juvenile court suspended visits with Parents, the foster mom said there was a noticeable improvement in the children's behavior. She testified that Mother admitted being fearful of Father being around the children, that Mother told the foster mom she would never leave the children alone with Father, and that Mother admitted she was scared of Father because he wouldn't leave her alone. The foster mom admitted she also had safety concerns for herself and the children regarding Father. The foster mom testified that she and her husband love the children and have developed a strong bond with them. If given the opportunity, they would adopt the children "[i]n a second."

         Father testified that he did everything he felt he could do in order to regain custody of his children, stating he "went above and beyond" what DCS asked him to do in completing goals of the permanency plans. Father stated that he stopped using marijuana after the children were taken into DCS custody and said he would not use marijuana if the children came back into his custody. This was contrary to what Father told the various counselors he saw, including Mr. Bonds and Mr. Beyer. Father denied knowledge of any instances of domestic violence despite being presented with police reports from the incidents and denied having either a drug or alcohol addiction. Father testified he had not used illegal drugs since his children were born but was later presented with the results of a drug screen from June 2017 in which he tested positive for methamphetamine, which Father then admitted did ...

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