In re Neveah W.
| Decision Date | 02 April 2015 |
| Docket Number | No. W2014-01531-COA-R10-CV,W2014-01531-COA-R10-CV |
| Citation | 470 S.W.3d 807 |
| Parties | In re Neveah W. |
| Court | Tennessee Court of Appeals |
470 S.W.3d 807
In re Neveah W.
No. W2014-01531-COA-R10-CV
Court of Appeals of Tennessee, AT JACKSON.
March 11, 2015 Session
Filed April 2, 2015
Herbert H. Slatery, III, Attorney General and Reporter; Joseph F. Whalen, Acting Solicitor General; Alexander S. Rieger and Kathryn A. Baker, Assistant Attorney Generals, for the appellant, Department of Children's Services.
Laura D. Rogers, Memphis, Tennessee, for the appellees, Marie W. and Jason W. Ray Glasgow, Memphis, Tennessee, Guardian Ad Litem.
Opinion
J. Steven Stafford, P.J., W.S., delivered the opinion of the Court, in which Brandon O. Gibson, J., and John Everett Williams, Sp. J., joined.
OPINION
J. Steven Stafford, P.J.
This extraordinary appeal arises from the trial court's placement of a minor child while the minor child remains in the legal custody of the Tennessee Department of Children's Services (“DCS”). The minor child was removed by DCS from the home of her Foster Parents, who had cared for her almost since birth, after allegations that the Foster Parents had abused one of their other children. The minor child's guardian ad litem filed an emergency petition seeking the return of the child to the Foster Parents' home, or alternatively, for an award of legal custody to the Foster Parents. After a hearing wherein DCS, the Foster Parents, and the GAL presented evidence, the trial court ordered that the child be returned to the Foster Parents' home, but declined to remove the child from DCS's legal custody. On appeal, we hold that a trial court may not direct placement of a child in the legal custody of DCS. We reverse the ruling of the trial court and remand for further proceedings.
Background
This case, an extraordinary appeal pursuant to Tennessee Rule of Appellate Procedure 10, arises from an order of the Shelby County Chancery Court placing a minor child, who is currently in the legal custody of DCS, back into the home of her Foster Parents, with whom she had resided with almost since birth. Neveah W. (“Neveah” or “the child”)1 was born to Stacy W. (“Biological Mother”) in May 2011. No father was listed on Neveah's birth certificate.2 Since birth, Neveah has faced numerous developmental and cognitive obstacles because she was born addicted to certain drugs. The record indicates
that Biological Mother had a history of prostitution and drug use; further, she had threatened to kill herself and Neveah at some point while Neveah was still in her custody. Just a few weeks after Neveah's birth, on May 26, 2011, DCS filed a petition in the Shelby County Juvenile Court to adjudicate Neveah dependent and neglected based on allegations that Biological Mother used illegal drugs and had been diagnosed with paranoid schizophrenia, leading her to threaten the lives of herself and Neveah. On June 6, 2011, the trial court awarded DCS temporary custody.
Neveah's initial foster home was unable to care for her special needs. In early June 2011, DCS contacted Marie W. (“Foster Mother”) and Jason W. (“Foster Father,” together with “Foster Mother,” “Foster Parents”) to inquire about whether they could provide a foster home for Neveah. Neveah was placed with Foster Parents on June 6, 2011. Foster Parents raised Neveah in their home, undisturbed with the exception of brief visitations from Biological Mother, for approximately three years.
At the time Neveah was placed with the Foster Parents, they had three children, all of whom they had adopted. Foster Parents' children were ages sixteen, thirteen, and nine. Thus, at the time of the hearing in the trial court in this case, three other children resided in Foster Parents home; only one of the children was in foster care, Neveah. Kara, Foster Parents' nine-year-old, had been in Foster Parents' home since she was three years old. Like Neveah, Kara had been placed with the Foster Parents by DCS. However, even from an early age she displayed violent and manipulative behavior. It is undisputed that Kara had been diagnosed with Reactive Attachment Disorder, a condition that caused her to be manipulative and oftentimes violent. Kara had been abused, neglected, and sexually molested prior to entering foster care, causing her to act out in sometimes violent and sexual ways. After being taken into custody by DCS, Kara was placed in foster care, but because of her past abuse and Reactive Attachment Disorder, Kara had significant behavioral problems. Accordingly, Kara's stays with foster families were often short-lived. Foster Parents were Kara's fifth foster family in approximately six years. Because Kara moved from foster family to foster family, her inability to attach to a family was compounded. Still, Foster Parents believed they could provide a loving home for Kara and subsequently adopted Kara prior to the events in this case.
During Neveah's time in the care of Foster Parents, DCS made several attempts towards the reunification of Neveah and Biological Mother. The record, including the trial transcript, is not clear on the precise dates of visitations or trial home placements with Biological Mother; however, it is clear that DCS put forth efforts to offer Biological Mother an opportunity to visit with Neveah. Between May 2011 and March 2012, Biological Mother visited with Neveah two times. As of March 2012, the recommended duration and frequency of the visits was four hours every month. On June 6, 2013, DCS attempted a trial home placement with Biological Mother. Sixty days later, the placement was disrupted, and Neveah was returned to Foster Parents. Despite the failure of the first trial home placement, DCS attempted another trial home placement with Biological Mother sometime in late 2013 or early 2014. Again, this trial home placement failed when Biological Mother again returned to a psychiatric treatment facility.
The court-appointed Guardian ad Litem (“GAL”) filed a Petition to Terminate Biological Mother's Parental Rights in the Shelby County Chancery Court on April 23, 2014.3 During the pendency of the termination petition, DCS began investigating Foster Parents' home based on allegations of abuse made by Kara. Ultimately, in April 2014, Foster Parents surrendered their rights to Kara, as discussed below, based on her failure to bond with their family due to her Reactive Attachment Disorder. Shortly thereafter, on May 15, 2014, Foster Parents intervened in the GAL's petition to terminate by filing their own Petition to Terminate Biological Mother's Parental Rights and for Adoption under the same docket number. At some point after the filing of the GAL's petition, DCS increased Biological Mother's visitation from four hours per month to four hours per week.
DCS concluded its investigation of Foster Parents' home on July 14, 2014. At that time, DCS removed Neveah from the home and ultimately placed her with a different foster family. DCS also revoked Foster Parents' license to serve as a foster home in the future. DCS based its revocation on Foster Parents' breach of the foster parent contract, which occurred when Foster Mother conceded she had used corporal punishment on Neveah by “smacking” her hand and when Foster Parents filed their petition to terminate Biological Mother's parental rights. DCS did not provide prior notice to Foster Parents or to Neveah's GAL. That same day, the GAL filed an Emergency Ex Parte Petition for Injunctive Relief seeking return of Neveah to the home of Foster Parents. Foster Parents did not file their own emergency ex parte motion. On July 15, 2014, counsel for all parties appeared in court. During the hearing, the trial court declined to address the issue of returning Neveah to Foster Parents' home, and it set that matter for hearing on August 11, 2014. The trial court did rule on an issue concerning visitation with Biological Mother, however, entering a written order enjoining DCS from increasing the duration or frequency of the visitations.4
On August 11, 2014, the parties appeared for an evidentiary hearing on the GAL's Emergency Ex Parte Petition. The following witnesses testified at the hearing: Carolyn Nathaniel, the lead investigator with DCS's Special Investigations Unit; Regina Stigler, a case manager for DCS; Beverly Williams, a case manager for DCS; Tawanna L. Leland, a team coordinator for DCS; Dr. Marwyn Benemerito, Neveah's occupational therapist; and Foster Parents.
The testimony of the witnesses for DCS centered on the investigation into the home of Foster Parents based on the allegations made by Kara. As stated above, DCS's investigation began after Kara made allegations that she had been abused by Foster Parents. Ms. Nathaniel, the lead investigator for DCS, testified that Kara had reported to a third party that
she had been locked in her bedroom and forced to urinate and defecate in the room. She also stated that Kara asserted that she had been hit with a wooden spoon. Ms. Nathaniel was unaware of Kara's psychological issues, including her Reactive Attachment Disorder, and had no knowledge of the efforts Foster Parents had made to treat Kara's issues, see discussion of Foster Mother's testimony, supra . Similarly, Ms. Stigler testified that she had never met Kara, but that she did interview...
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...the custody of DCS. On April 2, 2015, this Court issued an opinion answering that question in the negative. See In re Neveah W. , 470 S.W.3d 807, 808 (Tenn. Ct. App. 2015) ("we hold that a trial court may not direct placement of a child in the legal custody of DCS"). We noted, however, that......