In re Western

• Decision Date: 03 February 2017
• Docket Number: No. W2016-00932-COA-R3-PT.,W2016-00932-COA-R3-PT.
• Citation: 525 S.W.3d 223
• Parties: IN RE: NEVEAH W.
• Court: Tennessee Court of Appeals

525 S.W.3d 223

IN RE: NEVEAH W.

No. W2016-00932-COA-R3-PT.

Court of Appeals of Tennessee, AT JACKSON.

November 17, 2016 Session

Filed February 3, 2017

Application for Permission to Appeal Denied by Supreme Court May 9, 2017

William Ray Glasgow, Memphis, Tennessee, Guardian ad Litem for the Appellant, Neveah W.

Herbert H. Slatery III, Attorney General and Reporter, Andrée S. Blumstein, Solicitor General, and Alexander S. Rieger, Assistant Attorney General, Nashville, Tennessee, for the Appellee, Tennessee Department of Children's Services.

Laura Diane Rogers, Memphis, Tennessee, for the Appellees, Jason W. and Marie W.

Brandon O. Gibson, J., delivered the opinion of the court, in which Arnold B. Goldin, J., and David R. Farmer, Sp. J., joined.

OPINION

Brandon O. Gibson, J.

This is the second appeal in this case involving a long-running battle between foster parents and the Tennessee Department of Children's Services ("DCS"). In 2014, DCS removed the three-year-old child at issue from her foster home of three years. In the context of this already pending termination and adoption proceeding, the chancery court held an evidentiary hearing and determined that there was insufficient evidence to justify removal and that DCS had taken steps adverse to the child's best interest. The chancery court ordered DCS to return the child to her foster home. On extraordinary appeal, this Court determined that a trial court cannot direct the placement of a foster child within DCS legal custody, but we recognized that the trial court could remove legal custody from DCS and place custody directly with the foster parents if warranted. One week prior to the hearing on remand, DCS participated in a surrender proceeding under a separate docket number and contemporaneously obtained an order of full guardianship over the child. DCS then moved to dismiss as moot the termination, adoption, and custody petitions pending in this case because DCS, as guardian, refused to consent to an adoption by the child's former foster parents. The child's current foster mother attempted to intervene. After a two-day trial, the trial court dismissed the former foster parents' petitions as moot and granted the adoption to the current foster mother, as DCS in its role as guardian would only consent to an adoption by her. The child's guardian ad litem appeals. The former foster parents and DCS raise additional issues. We affirm in part, vacate in part, reverse in part, and remand for further proceedings.

I. FACTS & PROCEDURAL HISTORY

The child at issue in this proceeding, Neveah, was born in May 2011. DCS received a referral regarding Neveah on the date of her birth. Neveah's mother ("Mother") was a psychiatric patient with a history of severe mental illness and diagnosis of paranoid schizophrenia. She was hospitalized while pregnant due to suicidal and/or homicidal ideations. After birth, Mother reportedly stated that she wanted to kill herself and Neveah. She had an arrest history of prostitution and was unable to give the name of Neveah's father. Neveah remained hospitalized after birth due to withdrawal symptoms from unknown medications. The juvenile court of Shelby County awarded temporary custody of Neveah to DCS pursuant to a protective custody order on or about May 26, 2011.

Neveah was discharged from the neonatal intensive care unit and placed in a foster home with Jason and Marie W. ("Foster Parents") when she was four weeks old. Foster Parents were military veterans who had served as foster parents in Virginia and adopted three children before relocating to Tennessee. They had fostered a total of six children in Virginia and Tennessee and welcomed Neveah into their home. In October 2011, Neveah was adjudicated dependent and neglected, "as one whose parent ... by reason of cruelty, mental incapacity, immorality or depravity is unfit to properly care for such child." The dependency and neglect order provided that legal custody would remain with DCS.

One of the adopted children in Foster Parents' home, Kara, suffered from Reactive Attachment Disorder. According to a therapist who testified in this case, one behavioral manifestation of Reactive Attachment Disorder is that the person is very manipulative and dishonest. Kara had been abused, neglected, and molested, and she was originally placed in foster care at the age of two. By the time she was placed with Foster Parents at the age of three, she had already been removed from four foster homes due to outrageous behavior and attended 150 medical visits. Foster Parents believed that if they provided Kara with a safe and loving home, she would eventually accept them. They adopted Kara at the age of six. They enrolled her in play therapy, attachment therapy, occupational therapy, speech therapy, equine therapy, sports programs, and music lessons, but nothing seemed to help Kara. She attempted to harm Foster Parents' dog, tried to molest other children on the playground, tried to bite opposing team members during soccer, and struck Foster Father more than once. According to Foster Parents, the older Kara grew, the angrier she became. Kara was manipulative and violent. During therapy and at other times, she would state that she wanted to "rip off your head and pee down your throat." She would intentionally urinate and defecate in her bedroom. She would go into fits of rage for hours during the day and sneak out of her bedroom at night. Foster Parents began to fear Kara, who was nine years old by then, and began working with a private adoption agency to find another adoptive family for her. Foster Parents did not inform DCS of their issues with Kara or their intent to surrender their parental rights to her because Kara was not a DCS foster child; instead, they sought assistance from the department that placed Kara.¹

As Kara's behavior escalated, Foster Parents placed baby gates, bells, and alarms on Kara's bedroom door, but she continued to leave her room at night. They also placed an alarm on Neveah's door in case Kara attempted to enter her room at night. Eventually, Foster Parents began locking Kara's door at night. This practice lasted for about one month until Foster Parents surrendered their parental rights to her on April 2, 2014. Kara went to a family with a special education teacher who had studied reactive attachment disorder.

In the meantime, between 2011 and 2014, DCS made significant efforts to reunite Neveah with Mother despite Mother's severe mental health issues. DCS scheduled a ninety-day home visit for Neveah with Mother, but after about two months, Mother voluntarily ended the visit by reporting through the DCS safety plan that she could not bear the child. The foster care review board recommended termination of Mother's parental rights. Frustrated by DCS's failure to proceed, Neveah's guardian ad litem ("GAL") filed a petition to terminate Mother's parental rights in the chancery court of Shelby County on April 23, 2014, just before Neveah's third birthday. The petition alleged that termination was appropriate based on the statutory grounds of substantial noncompliance with permanency plans, persistent conditions, and parental incompetence because of Mother's impaired mental condition. The petition alleged that termination was in Neveah's best interest and that Foster Parents were willing to adopt her.

About three weeks later, on May 15, 2014, Foster Parents filed a separate petition for termination and adoption, also in the chancery court of Shelby County. They alleged abandonment, in addition to the same grounds for termination asserted by the GAL. Foster Parents' adoption petition noted that they had cared for three-year-old Neveah almost continuously since she was discharged from the hospital at one month old. The two petitions were eventually consolidated.

DCS considered Foster Parents' decision to independently file a petition for adoption as a breach of their foster parent agreement with DCS. DCS considered but ultimately decided against removing Neveah from Foster Parents' home based on their filing of the adoption petition on May 15, 2014. However, the relationship between DCS and Foster Parents continued to deteriorate. On May 19, 2014, Foster Parents and the GAL jointly filed a petition for injunctive relief, alleging that DCS was allowing Mother to have unsupervised contact with Neveah despite Mother's recent involuntary commitments, hallucinations, and assault on her mother. Chancellor Kenny Armstrong² entered an injunction prohibiting Mother from having any unsupervised contact with the child pending further orders. The day after this injunction was entered, DCS increased Mother's supervised visitation from four hours per month to four hours per week. Chancellor Armstrong later ruled that DCS could not further increase Mother's visitation without a hearing.

On June 23, 2014, DCS learned of statements made by Kara indicating that she had been locked in her bedroom at Foster Parents' home and that she had urinated and defecated in her room. DCS employees went to Foster Parents' home and interviewed them about the situation. Foster Parents told DCS about Kara's Reactive Attachment Disorder and behavioral issues and their previous attempts at counseling, baby gates, and door alarms. Foster Parents said that they used a wooden spoon when spanking Kara but that they did not do the same with Neveah, as DCS policies prohibited corporal punishment for foster children. They admitted to locking Kara's bedroom door at night as "a last resort" for the last month that she was in their home due to their concerns about the safety of other family members and the pets. Foster Parents also explained Kara's practice of urinating and defecating in her bedroom.

DCS admittedly never had any issues with the care Foster Parents provided to Neveah prior to this incident, and they did not observe anything alarming about Neveah's condition during their visit to Foster Parents' home to investigate. Foster Parents'...