In re Gabriella D., E2016-00139-SC-R11-PT

• Citation: 531 S.W.3d 662
• Decision Date: 29 September 2017
• Docket Number: No. E2016-00139-SC-R11-PT,E2016-00139-SC-R11-PT
• Parties: IN RE GABRIELLA D., et al.
• Court: Supreme Court of Tennessee

531 S.W.3d 662

IN RE GABRIELLA D., et al.

No. E2016-00139-SC-R11-PT

Supreme Court of Tennessee, AT KNOXVILLE.

June 2, 2017 Session

Filed September 29, 2017

Rachel M. Wright, Hixson, Tennessee, for the appellant, Carla D.

Susanne Lodico, Chattanooga, Tennessee, for the appellees, Karen P. and Thomas S.

Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; Alexander S. Rieger, Deputy Attorney General; and Kathryn A. Baker, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services.

Sam Byrd, Chattanooga, Tennessee, Guardian Ad Litem.

Cara C. Welsh, Chattanooga, Tennessee, Amicus Curiae and Guardian Ad Litem for the Children in the Hamilton County Juvenile Court.

Cornelia A. Clark, J., delivered the opinion of the court, in which Jeffrey S. Bivins, C.J., and Sharon G. Lee, Holly Kirby, and Roger A. Page, JJ., joined.

Cornelia A. Clark, J.

The Tennessee Department of Children's Services ("DCS") removed three children from the custody of their parents and placed them with foster parents in March 2012 because one of the children, an infant, was severely malnourished. By July 2012, the children's mother was cooperating with DCS and complying with a permanency plan that set the goal for the children as reunification with their mother or another relative. The mother continued to comply with the permanency plan for the next sixteen months that the children were in foster care. On the day the children were scheduled to begin a trial home visit with the mother, July 31, 2013, the foster parents filed a petition in circuit court seeking to terminate the mother's parental rights and to adopt the children. After the foster parents filed their petition in circuit court, the juvenile court, which had maintained jurisdiction over the dependency and neglect proceeding, ordered DCS to place the children with the mother for the trial home visit. The circuit court trial on the foster parents' petition did not occur until September 2015. By that time, the children had resided with the mother on a trial basis for two years without incident. The mother, DCS, and the guardian ad litem appointed by the juvenile court in the dependency and neglect proceeding opposed the foster parents' petition. The foster parents and a guardian ad litem appointed by the circuit court sought termination of the mother's parental rights. After the multi-day trial, the trial court dismissed the petition, finding that the foster parents had proven a ground for termination by clear and convincing proof but had failed to establish by clear and convincing proof that termination is in the children's best interests. The foster parents appealed, and the Court of Appeals reversed. We granted the mother's application for permission to appeal and now reverse the judgment of the Court of Appeals and reinstate the trial court's judgment dismissing the foster parents' petition. We conclude that the trial court correctly determined that the proof does not amount to clear and convincing evidence that termination of the mother's parental rights is in the children's best interests.

I. Factual and Procedural Background¹

The appellant, Carla D. ("Mother"), now resides in Hamilton County, Tennessee, which borders Georgia, and has previously resided in Georgia. Mother has a long history with the child welfare agencies in both Georgia and Tennessee, specifically the Georgia Division of Family and Children's Services ("GDFCS") and DCS.² Mother has five biological children with the same man, Julius D. ("Father").³ Mother's first child was born December 24, 2004, in Georgia. GDFCS became involved with the family five months later, on May 23, 2005, as a result of an incident of domestic violence that occurred in the presence of the child.

On February 3, 2006, Mother's second child was born addicted to drugs. Fifteen days later, GDFCS took both children into custody after Mother and Father were involved in an automobile accident in eastern Tennessee while under the influence of drugs and while their oldest child was in the vehicle with them. Mother, Father, and the child were transported to a hospital, and hospital personnel would not release the child to Mother and Father because of their intoxication. Mother and Father had tested positive at the hospital for marijuana, benzodiazepines, and methadone, and hospital personnel had to shake them to elicit a response. When GDFCS took the children into custody, the youngest child was still experiencing withdrawal symptoms and had a severe case of thrush, caused, at least in part, by dirty bottles. On September 11, 2007, a Georgia court terminated Mother's and Father's parental rights to these two children, and the children were later adopted by two different families.⁴

On March 18, 2008, only six months after the Georgia court entered its termination order, Mother gave birth to Gabriella in Tennessee, across the border from where she lived in Georgia. Within a month of Gabriella's birth, GDFCS petitioned the Georgia court, asking the court to order Mother to participate with drug screening, citing Mother's history with GDFCS and history of drug abuse. The record does not reflect the disposition of this petition. But, on June 26, 2008, GDFCS received a report that Mother and Father had been smoking marijuana in Gabriella's presence and also abusing prescription medication. While Georgia law enforcement and GDFCS officials were in the home investigating the complaint, they noticed that Father appeared to be under the influence. He was caring for Gabriella at the time, and he dropped her while moving her from a bed into a nearby infant seat, hitting her head on the side of the infant seat. Law enforcement officers also found drug paraphernalia in the home. Additionally, a count of Mother's and Father's prescription medications revealed far fewer Xanax and Oxycontin pills remaining than what would have remained had the medication been taken as prescribed. GDFCS then took Gabriella into protective custody and placed her for eight months in the home of the family that had adopted one of her older siblings.

After losing custody of Gabriella, Mother began cooperating with Georgia officials and complying with the conditions GDFCS had imposed for her to regain custody of Gabriella. Mother reported to GDFCS that she had separated from Father and was seeking a divorce, and she sought a protective order against Father. Mother completed an alcohol and drug intensive outpatient program, had clean drug screens, and enlisted the assistance of her own mother ("Maternal Grandmother"), who moved from Florida to Georgia to support Mother and help care for Gabriella while Mother worked. On February 2, 2009, Mother regained custody of Gabriella after a Georgia court found that she "had completed her case plan." But, in the order returning custody to Mother, the Georgia court directed GDFCS to provide "aftercare" for Mother and Gabriella for thirty days and also ordered Mother to "ensure" that Father have "no contact" with Gabriella.

Unfortunately, Mother soon violated the Georgia order by returning to Father and resuming her drug use. Not quite eleven months after regaining custody of Gabriella, Mother gave birth to Jude in a Tennessee hospital on December 31, 2009.⁵ He was born addicted to drugs. DCS received a referral because of Jude's drug addiction and required Mother to complete an alcohol and drug assessment. Mother satisfied this requirement, and DCS did not remove either Gabriella or Jude from Mother's custody or impose additional requirements.

On May 12, 2010, Mother returned to the home she shared with Father to find him unconscious on the floor, and a friend's child, whom the friend had left in Father's care, dead in a travel crib.⁶ Father's mother ("Paternal Grandmother") ordinarily cared for Gabriella and Jude in this home while Mother worked, but Paternal Grandmother and the children were not present in the home when this tragedy occurred, so the children were not removed from Mother's custody.

About a month later, in June 2010, DCS received a new referral based on the Georgia order directing Mother to ensure that Gabriella have no contact with Father. DCS removed Gabriella and Jude from Mother's custody. During this removal, Mother had been using drugs and failed a drug screen. Nevertheless, DCS placed the children back with Mother three days later on the condition that she comply with a non-custodial permanency plan that, among other things, required her to stop abusing drugs and to keep the children away from Father until he received treatment for drug use. By August 20, 2010, Mother had passed three drug screens and had informed DCS that Father knew he could not have any contact with the children until he completed drug treatment. DCS returned the children to Mother without supervision or follow-up and closed its case.

But, yet again, not long after regaining custody of the children, Mother returned to Father, resumed using drugs, and became pregnant again. Her fifth child—Chance—was born on September 9, 2011, and he had methadone in his system that Mother had received at the hospital prior to his birth to treat her addiction. Chance weighed six pounds and fourteen ounces at birth. About six months later, on March 5, 2012, Father took Chance to see a doctor, because Chance was not gaining weight. Chance was immediately transported from the doctor's office to the emergency room of a local Tennessee hospital, where he remained for four days. At the time of his admission, Chance weighed only seven pounds and six ounces, having gained only eight ounces since his birth. Chance was diagnosed with severe malnutrition and failure to thrive. Mother, who had been responsible for caring for Chance, claimed that she had been feeding him six to eight ounces of formula, six to eight times daily, along with baby cereal. She said he was not spitting up more than normal and was not having excessive...