In re A.L.B., No. M2004-01808-COA-R3-PT (TN 7/6/2005)
| Decision Date | 06 July 2005 |
| Docket Number | No. M2004-01808-COA-R3-PT.,M2004-01808-COA-R3-PT. |
| Parties | IN RE A.L.B., N.W.B. AND C.B.B. |
| Court | Tennessee Supreme Court |
Appeal from the Circuit Court for Franklin County; No. J01647; Thomas C. Faris, Judge.
Judgment of the Circuit Court Reversed and Remanded.
Glen A. Isbell, Winchester, Tennessee, for the appellants, N.W.B. and R.D.B.
Paul G. Summers, Attorney General and Reporter; Douglas Earl Diamond, Assistant Attorney General, for the appellee, State of Tennessee, Department of Children's Services.
Trudy McKelvey Edwards, Winchester, Tennessee, Guardian Ad Litem for A.L.B., N.W.B. and C.B.B.
William B. Cain, J., delivered the opinion of the court, in which William C. Koch, Jr. P.J., M.S. and Patricia J. Cottrell, J., joined.
This is a termination of parental rights case involving rights of both parents to their three young children. Parental rights of both parents were terminated after the trial court found substantial noncompliance with the permanency plan and persistence of conditions that led to the removal under Tennessee Code Annotated section 36-1-113 (g)(3), those conditions being filthy and unsanitary living conditions in the home. The court also found that termination was in the children's best interests. We reverse this decision and remand the case for further proceedings.
The parents in the case are married and have given birth to three children: A.L.B. on 10/26/96, N.W.B. on 5/24/98, and C.B.B. on 4/5/00. Mother and Father are uneducated and extremely poor. The family first came to the attention of DCS in March of 2000 when a referral was made. The reason for the referral turned out to be without basis; however, at that time, the DCS worker made a note of the poor living conditions in the home. It was noted that the children were dirty, the house had an odor of garbage, there were many caged animals in the house and animal feces was found on the floor. The refrigerator was extremely dirty, and food and garbage were lying all around the house. The house in which the family was living belonged to the paternal grandmother, and many of the animals living in the home were raised by her for resale. The house itself was extremely old and in need of numerous repairs. It had only one closet, no phone and no central air or heat; however, it did have working plumbing, running water, a bathroom, electricity, a refrigerator, and a useable kitchen. At that time, Mother was pregnant with the youngest child, C.B.B. DCS met with the parents to discuss their living conditions and made several home visits over the next few months. Some improvements were made in the living conditions during that time, and DCS did not pursue further action. The file on the family was closed thereafter.
A second referral was made in December 2001. The living conditions in the house were again found to be extremely bad. DCS made a referral for the family to receive in-home services beginning in December 2001 and closed their file again in January or February 2002 with the in-home services ongoing. The Southeast Community Services Agency provided these services; however, there was very little testimony as to what these services entailed. The Agency workers provided cleaning supplies and assistance with cleaning, but no other specifics were evidenced regarding the assistance provided in the home. The Agency also assisted the family in obtaining their own apartment. No Agency reports from this period were placed in evidence. The Agency workers mostly testified to some of the problems they witnessed at the Grandmother's house including the extreme poverty of the family, very little food in the house, dog feces on the floors, and general filth and clutter everywhere. After moving to the new apartment, the Agency workers also testified to the rapidly deteriorating condition of the apartment.
The family moved into a public housing apartment towards the end of April 2002. During the first few months after moving, Mother stated that she suffered from a back injury following her pregnancy. She was also attending class from 8:00 a.m. till 12:00p.m. in an attempt to obtain her GED, in addition to being primary care giver to the three small children. Father, who had previously been a shade tree mechanic at his mother's house, stated that he was unable to work or assist with many household duties due to a knee injury that required surgery. The family was living off of food stamps and other assistance. In July of 2002, the DCS case worker returned to check on the family and found the apartment to be a mess. The family was given another warning. The DCS worker again returned in August and still found numerous environmental problems including general filth and clutter, dirty children, and soiled diapers and trash lying around. The children were removed from the parents on August 30, 2002.
A parenting plan was put into place on September 18, 2002 with the goal of reunification. The parents' goals were to attend parenting classes, obtain jobs or otherwise establish a means of financial support for the family, maintain contact with the case manager, keep the house clean and free of clutter, have appropriate garbage disposal, wash dishes once a day, change beds sheets, keep harmful products out of reach of children, and maintain adequate and sanitary plumbing, water and toilet facilities.
In November of 2002, the family was evicted from the apartment as a result of Father's brother illegally tattooing in the apartment. An employee of the Housing Authority testified to the deplorable conditions in which the parents left the apartment after their eviction. Mother and Father then moved in with their preacher until they were able to rent a house in January 2003 on the same street where they had previously lived with the Grandmother. In April 2003, while living in the rental house, DCS attempted trial home visits with the hope of returning the children permanently to their parents.
The case workers did not testify to any problems with the environmental conditions during the family's time in the rental house. The home was found to be acceptable for a trial home placement for the children. One case worker and several foster parents did state that the children were dirty and smelled after visits with Mother and Father. However, the first extended home visits began in April 2003 and seemed to go well. The youngest child was placed back with the family full time and the oldest two children spent weekends with the family. The plan was that the two oldest children would also return home to live once school was out and that the return of all three children would be permanent. The family was receiving no services during this time and paid part of their rent by doing some repairs on the rental house. However, in May 2003, there was an allegation of child abuse due to spanking one of the children. As a result, Father was cited for child abuse, and the children were again removed in May 2003. Environmental conditions were not stated as a factor for this removal. The Petition to Terminate Parental Rights for all three children was filed on July 28, 3003.
Mother and Father were unable to continue living in the rental house and returned to the Grandmother's house shortly after the children were removed in May 2003. Since returning to the Grandmother's house, the family has attempted to clean the house and make some improvements including reinforcing weak floor areas, repairs to the bathroom, and adding plywood walls separating areas of the house where the children stay. However, the house remains extremely old, dirty and in need of extensive repairs.
The Termination of Parental Rights Hearing was set for November 19, 2003. At that time, DCS requested that the parents be given one final chance and recommended a 90 day trial home placement. This home placement began on November 19. Home services were again provided to the family beginning on December 3, and a new permanency plan was put in place on December 4, 2003. The primary requirement in the new permanency plan was that the parents maintain a safe and healthy living environment and that they diligently work with the home services agency to achieve that goal. A second goal of adoption was also added to the permanency plan. With regard to the parents' responsibilities, there are no specific requirements mentioned in this permanency plan.
The primary caseworker involved with this family, Dwayne Hill, testified that the parents weren't consistent in keeping the house clean; however, he did see that the family had made some improvement since he first became involved on August 30, 2002. During this last trial home placement, he visited the house on several occasions and saw no reason to remove the children at anytime. His last home visit was on February 13, 2004.
The family also received in-home services from Family Connections during the children's last home placement. An extensive report outlining the conditions of the home, the support provided and improvements made by the family was placed into evidence in addition to the testimony of the case manager, Shelia Bayuk. Ms. Bayuk stated that she helped them with their housekeeping skills and with their job search. The parents completed a parenting class and made improvements in discipline. She did not see any major problems inside the home. Her observations were based on eight visits to the house from December 3, 2003 to February 19, 2004.
Another referral was made to child protective services on February 14, 2004 and an investigation was conducted on February 18, 2004. The investigator, Allison Pettijohn, believed the conditions to be unsuitable for the children and had the children removed again that same day. This was Ms. Pettijohn's only contact with the family. She based her removal on the single visit to the home on February 18, 2004.
...
To continue reading
Request your trial