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In re Deishun M.

Court of Appeals of Tennessee, Knoxville

November 18, 2019

IN RE DEISHUN M. ET AL.

          Assigned on Briefs October 1, 2019

          Appeal from the Juvenile Court for Hamilton County No. 284-875, 284-877 Robert D. Philyaw, Judge.

         Jessica T. ("Mother") appeals the April 3, 2019 order of the Hamilton County Juvenile Court ("Juvenile Court") terminating her parental rights to the minor children, Deishun M. and Olivia M. ("the Children"). Upon petition of the Tennessee Department of Children's Services ("DCS"), the Juvenile Court terminated Mother's rights on the statutory grounds of severe child abuse and persistent conditions. The Juvenile Court further found that termination of Mother's parental rights was in the best interest of the Children. Discerning no error, we affirm.

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

          Cara C. Welsh, Chattanooga, Tennessee, for the appellant, Jessica T.

          Herbert H. Slatery, III, Attorney General and Reporter, and Matt D. Cloutier, Assistant Attorney General, for the appellee, the Tennessee Department of Children's Services.

          D. Michael Swiney, C.J., delivered the opinion of the court, in which Frank G. Clement, Jr., P.J., M.S., and Kenny W. Armstrong, J., joined.

          OPINION

          D. MICHAEL SWINEY, CHIEF JUDGE.

         Background

         DCS became involved with this family in July 2017, following the death of the Children's sibling, K.M. The Children were removed from the custody of Mother and the Children's father, Travis M. ("Father"), on July 9, 2017. DCS alleged that the Children were dependent and neglected and severely abused by the parents.

         DCS developed a permanency plan on July 28, 2017. The permanency plan provided for Mother to (1) be able to demonstrate knowledge of Deishun's educational issues and special needs at school, (2) remain informed regarding Deishun's progress, (3) attend educational meetings regarding Deishun, (4) resolve pending legal issues and not incur new criminal charges, (5) provide to DCS a copy of a rental or lease agreement, (6) provide to DCS her driver's license, proof of car insurance, and vehicle registration or otherwise present a transportation plan, (7) pay child support, (8) provide proof of a legal income or disability to DCS, (9) maintain residential stability "in a clean, safe and appropriate home" for a period of six months, (10) comply with a psychological evaluation and follow all recommendations therefrom, (11) take all medication as prescribed and comply with pill counts, (12) participate in individual or family therapy if requested by the treatment provider, (13) maintain visitation with the Children in a positive manner, (14) attend meetings at DCS and court hearings, (15) cooperate with all service providers and follow their recommendations, (16) complete parenting classes, (17) maintain contact with DCS and notify DCS of any changes to her contact information within twenty-four hours, (18) complete a parenting assessment and follow the resultant recommendations, (19) refrain from engaging in violence with other individuals, (20) complete domestic violence classes, (21) participate in all medical appointments for Olivia, (22) be informed of Olivia's medical or dental appointments, (23) demonstrate knowledge of Deishun's medical needs and necessary care, and (24) participate in all medical appointments for Deishun. The permanency plan was ratified by the Juvenile Court in October 2017 upon the Juvenile Court's finding that the plan was in the best interest of the Children.

         The Juvenile Court conducted an adjudicatory hearing and severe abuse trial on four nonconsecutive days occurring in February, March, and April 2018. Following trial, the Juvenile Court entered its order finding by clear and convincing evidence that the Children were dependent and neglected and severely abused by both parents. As to Father, the Juvenile Court found, pursuant to Tennessee Code Annotated § 37-1-102(b)(22)(A), that Father had severely abused the Children due to his action of leaving his three children, K.M. and the Children, in a hot car all day which could have resulted in severe bodily injury to the Children and did result in the death of K.M. The Juvenile Court found that sufficient evidence was not presented to establish that Mother knew the Children and K.M. had been left in a hot car all day and, therefore, did not find that Mother had committed severe abuse pursuant to Tennessee Code Annotated § 37-1-102(b)(22)(A).

         However, the Juvenile Court further found that both Mother and Father had severely abused the Children, pursuant to Tennessee Code Annotated § 37-1-102(b)(22)(B), "based on the expert testimony of Dr. [Heather] Gilliam, the home environment the children were living in, the parents' medical neglect of the subject children, the condition of the children's health, and the resulting developmental delays that have been observed in the child, Deishun." In its adjudicatory hearing and severe abuse order, the Juvenile Court found as follows regarding the Children's circumstances that led to the Court's finding of severe child abuse against Mother:

The Court received numerous photos of the deceased infant, the subject children, the vehicle, the scene of the death, and the home where the family had been living. Several witnesses, including CPD Officers Rankhorn, Booker and Grafe, testified that the family home was the worst residence they had ever seen, and the Court agreed that this may have been the worst the Court had seen. The Court found that the home was not clean, and witnesses who had entered the home testified that there was an overpowering smell of urine and/or feces present. The Court also noted photographs and testimony regarding numerous roaches present in the home, piles of feces (with no evidence or testimony that any pets lived within the home), clutter, lack of food (some was present but most was spoiled), the floors were filthy, there was a filthy torn up couch with feces smeared on it. Overall, the Court found that the apartment where the family lived was in deplorable condition.
Testimony was also presented that the parents did not take the children to the doctor, despite their young age and despite Deishun's apparent delays. The subject child, Deishun, had not seen a doctor in three (3) years. The subject child, Olivia, had not seen a doctor since her birth or shortly thereafter. Testimony was heard that the mother had claimed she did not get the children vaccinated due to her belief that vaccines could cause a mental disorder, but the proof was clear that the children had not been vaccinated because the children had not been taken to the doctor or any medical provider in years.
The Court heard a substantial amount of testimony and received medical records regarding the subject child, Deishun. Specifically, the Court heard proof regarding Deishun's developmental delays, bruises observed on his body, black eyes observed on him, his lethargy and inability to walk well after having been in the father's vehicle on July 8, 2017. In addition, the Court heard proof regarding Deishun's low weight. CPS investigators Catherine Gray and Marilyn Baldwin testified about his thinness and his ribs being visible when he entered DCS custody. The Court also heard testimony that Deishun could only speak a few words upon entering DCS custody.
The Court noted it is unknown how many of Deishun's developmental delays were due to the lead that was found to be in his and Olivia's system, and for what sustained period of time the children were exposed to lead since neither child had seen a doctor who likely would have tested for any lead exposure.
Several witnesses testified that the subject children were observed to be very protective of their food. Olivia appeared to be in much better health than her older brother, Deishun. Deishun was not potty trained at five (5) years old when he was removed from his parents, but he was potty trained by the foster parents within a month of being in DCS custody. The Court found this . . . fact to be significant.
Testimony was heard that the family had lived in the Westside Chattanooga Housing Authority apartments for the past two (2) years.
On March 12, 2018, the Court heard testimony that the children were cleaned up by emergency and police personnel on the scene before being transported to Erlanger Medical Center. Earlier testimony had noted the smell of the clothes the children were wearing was so bad that it permeated the bag into which the clothes were placed. The Court found it deplorable that even after the children had been cleaned up, their odor and their clothes still smelled offensively bad.
The Court found the testimony from [A.T. ("Ms. A.T.")], the first foster parent, significant to parenting issues. Specifically, Ms. [A.T.] had testified that the children did not have any type of schedule, and that they did not know when to sleep or when to get up. Ms. [A.T.] testified about the children hoarding food. Ms. [A.T.] also testified that the subject child, Olivia, was so concerned with the whereabouts of the foster parent, she attempted to sleep standing up within view of the foster parent.
The Court heard testimony from the current foster parents, [D.M. ("Ms. M.") and M.T. ("Ms. T.")]. They testified that they have been taking the subject children to the doctor regularly and their lead levels are declining. In addition, Deishun is now potty trained and attends school where he has an individualized education plan (IEP) in place.
Ms. [M.] had testified about how she attempted to get the mother away from the father years ago, and that she took the mother and the subject child, Deishun, with her to Atlanta when Deishun was still a baby. Ms. [M.] testified that the mother only stayed with her about three (3) weeks and left with Deishun in the middle of the night. Significantly, the mother did not take any of Deishun's baby supplies with her when she left, which the Court found to be a foreshadowing of her lack of care for her children.
Ms. [M.'s] partner, Ms. [T.], testified about the children's progress since being placed in their home. Ms. [T.] stated that the subject children now know about forty (40) to fifty (50) words. Deishun attends Wallace A. Smith Elementary, where he is in kindergarten. His lead levels have gone down some, but they are not yet where they need to be.
* * *
In addition, pursuant to TCA 37-1-102 (b)(22)(B), the Court found the subject children are the victims of severe abuse by both the mother and the father. The Court reviewed a deposition of Dr. Heather Gilliam, M.D., an expert in the field of pediatrics, who has treated the subject children in the Vance Stafford Pediatric Clinic at Erlanger Hospital. The Court found clear and convincing evidence that the parents committed severe child [abuse] pursuant to TCA 37-1-102(b)(22)(B) based on the expert testimony of Dr. Gilliam, the home environment the children were living in, the parents' medical neglect of the subject children, the condition of the children's health, and the resulting developmental delays that have been observed in the child, Deishun.

(Underlining omitted.) The Juvenile Court also ordered that the Children would remain in foster care. In May 2018, the Juvenile Court relieved DCS of making any further reasonable efforts with the parents due to the finding of severe child abuse. Father appealed the Juvenile Court's order, but all parties entered an agreed order on July 9, 2018, dismissing the appeal to the circuit court.

         In October 2018, DCS filed a petition to terminate Mother's parental rights. The Juvenile Court conducted a trial in February 2019. The Juvenile Court entered an order in April 2019 finding that DCS had proven by clear and convincing evidence the statutory grounds of severe child abuse and persistent conditions. The Juvenile Court further found by clear and convincing evidence that termination ...


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