In re M.J.B.

• Decision Date: 08 April 2004
• Docket Number: No. M2003-01167-COA-R3-PT.,M2003-01167-COA-R3-PT.
• Citation: 140 S.W.3d 643
• Court: Tennessee Court of Appeals
• Parties: In re M.J.B. & M.W.S., Jr.

140 S.W.3d 643

In re M.J.B. & M.W.S., Jr.

No. M2003-01167-COA-R3-PT.

Court of Appeals of Tennessee, at Nashville.

February 17, 2004 Session.

April 8, 2004.

Permission to Appeal Denied by Supreme Court July 12, 2004.

Appeal from the Juvenile Court, Davidson County, Alan E. Calhoun, Special Judge.

Nick Perenich, Nashville, Tennessee, for the appellant, K.D.M.

Paul G. Summers, Attorney General and Reporter, and Elizabeth C. Driver, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services.

Thomas H. Miller, Franklin, Tennessee, Guardian ad Litem for M.J.B. and M.W.S., Jr.

OPINION

WILLIAM C. KOCH, JR., P.J., M.S., delivered the opinion of the court, in which WILLIAM B. CAIN and PATRICIA J. COTTRELL, JJ., joined.

This appeal involves the termination of a mother's parental rights with regard to her two children. Approximately two years after removing the children from their mother's custody, the Tennessee Department of Children's Services filed a petition in the Davidson County Juvenile Court to terminate both the mother's and the two fathers' parental rights. The mother contested the petition, but ultimately, the children's fathers did not. Following a bench trial, the court entered an order terminating both the fathers' and the mother's parental rights. The mother has appealed. We have determined that the record contains clear and convincing evidence warranting termination of the mother's parental rights under Tenn.Code Ann. § 36-1-113(g)(2) & (3) (Supp.2003).

I.

K.D.M. was born in November 1978. She was raised by her mother after her father died when she was 2½ years old. One or more of her mother's boyfriends abused K.D.M. both physically and sexually when she was a child, and she was briefly placed in a foster home after one of her mother's boyfriends physically abused her. She attempted suicide several times and was hospitalized in a psychiatric facility on at least one occasion during her childhood. She was eventually diagnosed with depression and bipolar disorder.

K.D.M. eventually dropped out of high school in the middle of the eleventh grade. She took up with M.W.S. and, on September 13, 1996, she gave birth to her first son, M.W.S., Jr., in Sumner County. M.W.S. physically abused K.D.M. and on one occasion threatened to kill M.W.S., Jr. if K.D.M. tried to leave him. M.W.S. eventually abandoned K.D.M. and their child, and K.D.M. then took up with B.J.B.

B.J.B. also physically abused K.D.M. On May 23, 1998, K.D.M. gave birth to her second son, M.J.B. B.J.B. was the boy's father. For the next two years, B.J.B. was physically abusive toward K.D.M. and M.W.S., Jr. He also forced K.D.M. to have sex with him in front of both children. In early 2000, B.J.B. was arrested and incarcerated in the Hardin County Jail. K.D.M. was unemployed, and so she was reduced to selling her plasma twice a week to buy food for herself and her children. She was living in a squalid, rundown trailer at the rear of a junk yard. Both M.W.S., Jr. and M.J.B. were malnourished and essentially naked because K.D.M. could not provide them either food or clothes.

On June 29, 2000, K.D.M. brought her children to the Community Services Agency in Nashville seeking financial assistance. The children were hungry, practically naked, and in need of medical attention. K.D.M. requested that the children be placed in custody. On June 30, 2000, the Davidson County Juvenile Court entered an emergency protective custody order placing the children in the custody of the Department of Children's Services. The children were placed together in two foster homes between June 30 and July 6, 2000, and then were placed in a foster home in Cheatham County on July 6, 2000.¹

The forced loss of her children was a serious psychological blow to K.D.M. On July 18, 2000, she was admitted to the intensive care unit at Tennessee Christian Medical Center after taking an overdose of anti-anxiety medication. During her six-day hospitalization, K.D.M. met R.H. who was also hospitalized in the psychiatric unit at Tennessee Christian Medical Center. R.H. had a history of substance abuse and chronic mental illness. Following her release, K.D.M. took up with R.H. and eventually married him on August 19, 2000.

The Department prepared revised permanency plans for M.W.S., Jr. and M.J.B. on August 29, 2000, reflecting K.D.M.'s recent marriage to R.H.² The seemingly inconsistent goals of these plans were either to return the children to K.D.M. or to ready them for adoption. These plans obligated K.D.M. to meet the following requirements by January 2001:(1) obtain stable housing and employment for six consecutive months,³ (2) follow all recommendations in Tennessee Christian Medical Center's discharge summary, including the appointments with a psychologist and a therapist, (3) complete parenting classes, (4) complete individual counseling to address her "Battered Women's issues," (5) submit to random drug screens, and (6) pay court ordered child support.⁴

K.D.M. did not begin addressing her remedial obligations in August 2000 because her marriage to R.H. proved to be more abusive than her prior relationships with M.W.S. and B.J.B. Soon after their wedding, R.H. began using crack cocaine heavily. He exhausted his disability income purchasing drugs. He sold off almost all of the couple's possessions to purchase drugs. He even tried to convince K.D.M. to sell her body for sex to obtain more money to purchase drugs, but K.D.M. refused. K.D.M. also began using crack cocaine and marijuana with R.H.

On October 1, 2000, K.D.M. was again admitted to Tennessee Christian Medical Center for three days after taking more than a prescribed dose of Valium. She insisted that R.H. had overreacted and that she was simply trying to get some sleep rather than harming herself. On this occasion, she was diagnosed with a borderline personality disorder.

Later in the month, on October 24, 2000, the Department revised the parenting plans for M.W.S., Jr. and M.J.B. While K.D.M.'s obligations remained essentially the same, these plans moved their completion date back from January 2001 to either March or April 2001.⁵ In addition, the plan regarding M.W.S., Jr. revealed that he had been "sexually acting out with himself and others on more than one occasion" and that K.D.M. had revealed that B.J.B. had "exposed the children to inappropriate sexual conduct." The revised plan required the Department and Residential Services, Inc. to make appropriate diagnosis and treatment available to M.W.S., Jr.

On December 18, 2000, the Department moved to amend its original dependent and neglect petition⁶ to allege that M.W.S., Jr. was an abused child and that the abuse he suffered was severe.⁷ The Department also asserted that K.D.M. was "the perpetrator of such severe abuse." The Department changed its sexual abuse allegations when it filed its "amended petition to adjudicate dependency/neglect and sexual abuse" on March 1, 2001. This time, the Department asserted that both M.W.S., Jr. and M.J.B. were "sexually abused children" and that the perpetrator of the abuse was B.J.B., not K.D.M.⁸

K.D.M. finally left R.H. in February 2001. She lived briefly in a transient motel and then moved into a trailer on Dickerson Road with some friends. She began working as a day laborer in April 2001 where she met J.W.G., a former United States Marine who had been discharged from the service after being diagnosed with an antisocial personality disorder.⁹ J.W.G. and K.D.M. became friends after J.W.G. performed a magic show for M.J.B.'s birthday.

In mid-June 2001, K.D.M. moved into a trailer park on Murfreesboro Road after moving out of the trailer on Dickerson Road and living briefly in a motel. She also obtained employment at Kroger. J.W.G. also moved into the trailer. K.D.M. and J.W.G. became engaged, but they decided not to rush into marriage. During this interval, K.D.M. received a psychological evaluation at Centerstone Community Mental Health Centers, Inc. and was referred to counseling. She also began receiving homemaker services from Richland Village Home Services Unit. Even though she missed a significant number of appointments with her therapist and homemaker, the Department's quarterly progress report dated November 8, 2001 reported that K.D.M. was "doing a good job right now."¹⁰

The stability in K.D.M.'s life vanished in November 2001 when both she and J.W.G. lost their jobs. They were forced to move into a cheaper trailer on Dickerson Road, and one month later they moved in with J.W.G.'s mother. On January 16, 2002, the Department prepared yet another revised permanency plan for M.W.S., Jr. and M.J.B. Unlike the earlier plans, the sole goal of this plan was adoption. Despite the fact that the Department no longer anticipated returning the children to K.D.M., the revised plan required her to (1) "utilize the available resources and attend parenting classes to aid herself and the children," (2) address her "Battered Women's issues," and (3) "improve her current situation regarding housing, finances, and employment." Unlike earlier plans, this plan did not require K.D.M. to pay "court ordered child support."¹¹

On February 25, 2002, after the children had been in the Department's custody for almost twenty months, the juvenile court held a hearing on the Department's allegations that M.W.S., Jr. and M.J.B. were dependent and neglected.¹² After expressly finding that K.D.M. and her mother were not credible, the court found that K.D.M. had "time and time again" refused services that had been offered to her and her family and that her "constant moving and changing employment indicates to the Court that the mother is not stable." The court also stated that it did not find credible K.D.M.'s testimony that B.J.B. had coerced her to have sex in front of the children.¹³ Accordingly, the juvenile court concluded that both children were dependent and neglected and that they had been severely...