In re Estrella A., M2022-00163-COA-R3-PT

CourtCourt of Appeals of Tennessee
Writing for the CourtJ. STEVEN STAFFORD, JUDGE
PartiesIN RE ESTRELLA A. ET AL.
Docket NumberM2022-00163-COA-R3-PT
Decision Date21 November 2022

IN RE ESTRELLA A. ET AL.

No. M2022-00163-COA-R3-PT

Court of Appeals of Tennessee, Nashville

November 21, 2022


Assigned on Briefs August 1, 2022

Appeal from the Juvenile Court for Montgomery County No. 2019-JV-939, 2019-JV-940, 2019-JV-941 Tim Barnes, Judge

Mother appeals the termination of her parental rights on five grounds, including severe child abuse. Because we conclude that clear and convincing evidence supports the grounds for termination and that termination is in the children's best interests, we affirm.

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

Taylor R. Dahl, Clarksville, Tennessee, for the appellant, Dixie A.

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

J. Steven Stafford, P. J., W.S., delivered the opinion of the court, in which Frank G. Clement, Jr., P.J., M.S., and Thomas R. Frierson, II, J., joined.

OPINION

J. STEVEN STAFFORD, JUDGE

I. Factual and Procedural Background

On January 8, 2018, the Tennessee Department of Children's Services ("DCS") received a referral that a child, Estrella A.[1], who was five years old at the time, had made disclosures to her teacher indicating sexual abuse. DCS informed the child's mother, Respondent/Appellant Dixie A. ("Mother"), about the abuse. Apparently, Estrella had already informed Mother about the discomfort she was experiencing and Mother had dismissed the discomfort as a result of the child's hygiene.

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DCS thereafter conducted a forensic interview with Estrella on January 9, 2018, in which she made detailed disclosures of sexual abuse by her maternal grandfather, Jerry A., who was living in the same home with Mother and her children.[2] Estrella and her two siblings were initially placed with a relative. On September 11, 2018, however, DCS filed a petition to declare the children dependent and neglected and asked that the children be placed in DCS's physical custody. Based on the petition, the Montgomery County Juvenile Court ("the trial court") issued a protective custody order removing the children and placing them in DCS custody. The children were placed with a foster family, where they remained at the time of trial.

Eventually, on June 11, 2019, DCS filed a petition in the trial court to terminate Mother's parental rights to three of her children, Estrella, Ryleigh D., and Dakota A. The petition alleged the following grounds: (1) abandonment by failure to support; (2) abandonment by failure to establish a suitable home; (3) substantial noncompliance with permanency plans; (4) persistent conditions; (5) severe child abuse; and (6) failure to manifest an ability and willingness to assume custody.[3] DCS later filed an amended petition on August 23, 2019.

Trial on the termination petition occurred on October 21, 2021.[4] DCS case manager Karissa Chapman ("Ms. Chapman" or "FSW Chapman") testified that she was Mother's caseworker not only at the inception of this case, but during a prior case as well. Specifically, in October 2017, DCS received a referral that one or more of Mother's children was drug-exposed.[5] Mother was at that time taking part in drug and alcohol treatment. The children were not removed at that time. But during one meeting around December 2017, Mother informed Ms. Chapman that she had been sexually abused by her father. Mother's sister, who was also present at the meeting, confirmed that she had also been sexually assaulted by Jerry A. Both women further confirmed that he had attempted to assault another girl during a slumber party when the women were teenagers. Based on these disclosures, Ms. Chapman cautioned Mother not to allow Jerry A. around her children. Mother agreed.

In her testimony, Mother admitted that a DCS case had been opened regarding her own abuse as a minor and that there may have been an incident with her father as a teenager, but she denied having any memory of abuse perpetrated against her when she was a child

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because she was "too young." Still, Mother appeared to admit that the above-detailed conversation with Ms. Chapman occurred; Mother claimed, however, that she did not allow Jerry A. to be around her children following that conversation.[6]

According to DCS, Mother did not heed Ms. Chapman's warning. Following the 2017 Christmas holidays, Estrella disclosed to Mother her vaginal discomfort. Eventually, Estrella told Mother about the abuse. Mother admitted that when Estrella told her about what happened, her only response was "that if anything happened at nighttime to let me know, to kick on the wall."[7] As previously discussed, nothing was done until on or about January 8, 2018, when the child disclosed the abuse to a teacher and the abuse was reported to DCS, who began an investigation. The proof showed that Jerry A. pleaded nolo contendere to two counts of aggravated sexual battery of a child and was sentenced to two eight-year sentences.[8] Video of the child's forensic interview was submitted as proof that she was a victim of severe child abuse.

Although at trial Mother appeared to concede that the abuse had occurred, she denied that it occurred when she was in another room, as the child claimed in her forensic interview. Mother's testimony on this issue was as follows:

Q. . . . So as far as -- you've listened to this forensic [interview] today. As you sit here today, do you believe that your daughter was sexually assaulted by your father
A. Like I said, I don't know what happened. It -- when the time she said that happened, when I was in the living room and she was in the sunroom, I honestly don't think there was any way it could happen at that time. I'm not saying it didn't happen. I'm saying it did not happen at that time
Q. As we sit here today, do you believe that that happened?
A. At the time, no. Like when she said it happened, no. I'm not saying it didn't happen, but the time she said it happened, no.
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THE COURT: Ma'am, she's asking a very simple question. Do you believe your father molested your daughter?
THE WITNESS: Not with me in the other room, no. I didn't say --
THE COURT: I -- I'm not asking about the rooms. Do you think he ever molested your daughter?
THE WITNESS: I mean, by her testifying, it sounds like it, yes. But what I'm saying is, when I was in the other room, I don't think that happened then. I'm not saying it didn't happen at all. I'm saying when I was in the other room.
THE COURT: All right. Let's move on.

Mother admitted that when the child informed her, she failed to report the abuse to DCS or the police, or take the child to see a doctor.[9]

When questioned why Mother would allow Jerry A. around her children after Ms. Chapman's warning, Mother also claimed that she had not left the children alone with Jerry A. Still, Mother disputed that she had any right to remove Jerry A. from the home because she was living in the home of her sister. She also insisted that once the children were removed from her custody that she did remove him from the home and would never allow him to return to any home where her children were.[10] Except Mother admitted that she allowed her other children to be alone with Jerry A. on one occasion when it was unavoidable and only for a short period of time.

DCS family service worker/case manager Madison Huggins ("Ms. Huggins") further testified that Estrella "and other children" had previously been "sexually abused" by a "gentleman that [Mother] had allowed into the home."[11] Very little testimony was elicited about this incident except that the children have been "consistently in and out of State's custody or had involvement with [DCS] in some way[.]" Mother was also arrested following the removal of the children for charges related to possession of drug paraphernalia. Mother testified, however, that the charges were dropped because she was not in possession of the illegal items, but only in the car with drug users.

Mother's permanency plans focused on drug use, sexual abuse prevention, and housing. Pursuant to the plan, Mother was to, inter alia, complete an alcohol and drug assessment, follow any resulting recommendations, participate in random drugs screens, have stable housing and employment, visit with the children, pay $60.00 in child support per month, and complete a non-offender sexual abuse training class. It appears that Mother

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completed many of these requirements, including a drug and alcohol assessment, parenting and drug abuse classes,[12] as well as the intensive outpatient program and counseling recommended by the assessment.[13] Mother also consistently participated in supervised therapeutic visitation with the children. When Mother filed a motion for unsupervised visitation, however, the supervisor of the visits recommended against it on the basis that Mother had not progressed in her visits, did not always follow instructions during the visits, and had recently come to a visit sick, exposing the children to "the virus."[14]

By the time of trial, Mother still had not completed the non-offender training classes, despite DCS setting her up with three different providers to take the class. Mother claimed that her failure to complete the program was not her fault.[15] As of the date of trial, Mother had "just got in [the classes]" and had attended a class the day before trial. According to Ms. Huggins, Mother also continued to deny that Estrella was a victim of Jerry A.'s abuse.

Mother also sometimes failed or missed random drug screens, though she claimed that her work schedule caused her absences. As a result, Mother was asked to complete a second alcohol and drug assessment, which she never completed. Still, it appears that after Mother completed intensive outpatient treatment, Mother consistently passed...

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