Nash-Putnam v. McCloud

• Citation: 921 S.W.2d 170
• Decision Date: 22 April 1996
• Docket Number: NASH-PUTNAM and S
• Parties: Jon Saxtonandra Elaine Nash-Putnam, Plaintiffs-Appellees, v. Lou Anne McCLOUD, Defendant-Appellant.
• Court: Supreme Court of Tennessee

Page 170

921 S.W.2d 170

Jon Saxton NASH-PUTNAM and Sandra Elaine Nash-Putnam, Plaintiffs-Appellees, v. Lou Anne McCLOUD, Defendant-Appellant.

Supreme Court of Tennessee,

at Nashville.

April 22, 1996.

Robert D. Tuke, Tuke, Yopp & Sweeney, Nashville, for Petitioners-Appellees.

Gregory D. Smith, Willis & Knight, Nashville, for Defendant-Appellant.

OPINION

REID, Justice.

This case presents an appeal from the decision of the Court of Appeals affirming a judgment terminating the parental rights of the respondent-mother and decreeing the adoption of the child by the petitioner-foster parents. The record supports that judgment.

Debra McCloud was born on December 22, 1988. Two months later, in February 1989, she became a ward of the state, subject to the management of its Department of Human Services (DHS) and the pronouncements of its courts. Since the State became her parens patriae, Debra has been the victim of inconsistent counsel provided by State-employed experts, inconsistent positions by DHS with regard to her custody, and conflicting decisions by a juvenile court referee, a special judge of the juvenile court, the circuit court on two hearings, and two appeals to the Court of Appeals. In addition, she was the victim in two criminal court proceedings. This Court, seven years later, finally adjudges her legal fate.

The precipitating circumstances were acts of abuse and neglect by her parents. Evidence of physical abuse, a scratch and some bruises, first appeared on the day that Debra's mother, the appellant Lou Anne McCloud, returned to work. Debra was six weeks old. Her father, Kenneth McCloud, who was alone with the child before Ms. McCloud arrived home, explained that he had dropped the baby. During the next week, Ms. McCloud observed additional bruises, a swollen lip, a black eye, and abrasions in the child's vaginal area. The father avowed that all these conditions were the result of accidents which occurred while he was keeping the child. Ms. McCloud's mother suggested to her daughter that the injuries were not the results of accidents. On February 16, 1989, Debra's babysitter called Ms. McCloud and told her that Debra had a severe laceration inside her mouth and a high fever. Debra was taken to a hospital, where an examination revealed bruises and lacerations on her head, face, and stomach, vaginal bleeding and a bite mark on the child's breast.

Questioning by police officers and DHS personnel produced an admission by the father that he had struck the child because she would not be quiet. The father was arrested at the hospital, Ms. McCloud was arrested later. The father was charged with aggravated assault and assault and battery, and Ms. McCloud was charged with aggravated assault for failing to protect her child from abuse by the father.

Upon petition filed on February 16, 1989 in the juvenile court by DHS asking that the child be declared dependent and neglected, ¹ temporary custody was awarded to DHS, and on February 21, 1989, the child was placed with Mr. and Mrs. Nash-Putnam, the appellees, as foster parents.

Debra was the first child kept by the Nash-Putnams pursuant to an agreement with DHS that children would not be placed with them for extended periods of time and they would not be permitted to adopt a child placed with them except with the approval of DHS. However, by November 1989, the Nash-Putnams had commenced efforts to adopt Debra, which included discussions with Ms. McCloud and the DHS case worker. The relationship between the foster parents and DHS soon became strained because DHS resisted the Nash-Putnams' efforts to have the mother's parental rights terminated.

The goal of the original foster care plan prepared by DHS was that Debra and her mother, who had separated from the father, be reunited by December 1989. As a part of that plan, Ms. McCloud began attending classes and counseling sessions designed to improve her parenting skills and her ability to tolerate stress. She visited with Debra to the extent allowed by the custody order.

In December 1989, another child was born to the McClouds; in June 1990, they divorced; in July 1990, Ms. McCloud was convicted on three counts of aggravated assault and received a four year sentence, all of which, except for 45 days, was suspended; and the father was ordered to serve one year of an eight-year sentence on six convictions of aggravated assault and one conviction of assault and battery. Visitation between Debra and her mother continued while Ms. McCloud was incarcerated.

DHS reports prepared in August and October 1990, supported the return of custody to Ms. McCloud by September 1991; this plan was approved by the juvenile court and subsequently ratified by a DHS multi-disciplinary team. During this time, the Nash- Putnams strongly criticized DHS's foster care program on a local television show. They also disclosed to the DHS case worker that they planned to intervene in the case and that "Missy," the name they had given Debra, "will be practically grown by the time this matter is settled." They referred to plans to appear on national television shows on which DHS "would look less foolish if they were planning to terminate" Ms. McCloud's parental rights.

On April 9, 1991, Ms. McCloud moved the juvenile court for a hearing on the issue of custody. The Nash-Putnams, in a motion to intervene, petitioned the juvenile court to terminate Ms. McCloud's visits with the child. At the hearing, a juvenile court referee increased rather than terminated the mother's visitation privileges. On May 6, 1991, the guardian ad litem appealed the decision to the juvenile court judge, who recused himself and appointed a special judge. Eight months later, on January 6, 1992, the special judge concluded the hearing and rendered a decision.

On the appeal to the juvenile judge, heard by the special judge, DHS reversed its two-and-one-half-year's support of Ms. McCloud's right to retain her parental rights and, instead, supported the foster parents' position that Ms. McCloud's visits should be terminated. DHS apparently relied upon the views of the third clinical psychologist, who was retained to evaluate Debra's condition and circumstances after DHS had discharged two clinical psychologists previously retained for that purpose. However, the special judge denied the request that the mother's visitations be terminated and set July 8, 1992 as the date for a further hearing on the issue of custody. ² This judgment determining visitation was appealed to the circuit court, which accepted jurisdiction. During the hearing of the appeal in the circuit court, the Nash-Putnams filed, as an original suit in the circuit court, a petition for the adoption of Debra.

The decision of the circuit court on the appeal from juvenile court was appealed to the Court of Appeals. Those proceedings were described by Judge Koch, who wrote for the Court of Appeals, as follows:

"The special juvenile judge filed an order on January 6, 1992 that was highly critical of the department's handling of the case. The special judge found: (1) that the department had failed to make reasonable efforts to reunite Ms. McCloud and her daughter; (2) that the department had betrayed Ms. McCloud by leading her to believe that her daughter would be returned to her if she followed through with the foster care plan; (3) that Ms. McCloud had remedied the conditions that had required the removal of her daughter in February 1989; and (4) that it was in the child's best interests to increase visitation in an effort to reunite Ms. McCloud and her daughter on or before July 8, 1992. The special judge also set a hearing on July 8, 1992 'to determine if custody will be transferred from DHS to Lou Ann McCloud, and the visitation rights, if any, of the foster parents.'

"The special juvenile judge was never able to conduct the July 8, 1992 hearing because the Nash-Putnams pursued an appeal to the circuit court. Notwithstanding Ms. McCloud's objections to the prematurity of the appeal and the court's jurisdiction, the circuit court decided to entertain the appeal, to stay the juvenile court proceedings, and to set a hearing for May 21, 1992.

"On the day of the hearing, the Nash-Putnams filed a petition in the circuit court to terminate Ms. McCloud's parental rights and to adopt the child. Rather than supporting the Nash-Putnams as it had in the proceeding before the special juvenile judge, the department changed its position again and recommended that the child be returned to Ms. McCloud in a graduated manner.

"Following six days of hearings, the circuit court entered an order on June 18, 1992, finding (1) that the child was dependent and neglected; (2) that the child was a special needs child; (3) that the child had bonded to the Nash-Putnams; (4) that the Nash-Putnams had more than sufficiently met the child's needs during the three years she had been in their care; and (5) that visitation and placement with Ms. McCloud would not be in the child's best interests. Accordingly, the circuit court ordered the immediate termination of Ms. McCloud's visitation rights and remanded the case to the juvenile court with directions to the department 'to proceed with proper petitions for termination of parental rights of the mother allowing adoption proceedings to be initiated by the foster parents.' Ms. McCloud and the department have appealed from this order.

"This case should never have reached this court in its present posture. It highlights the shortcomings in the present foster care and adoption procedures whose purpose should be to mitigate the damage dysfunctional families inflict on children. These cases deal with delicate, far reaching issues that are best decided quickly and finally. Regrettably, the present statutory scheme for dealing with these issues invites delay, and every day that passes makes a final decision more difficult and more painful to all involved.

"There is no shortage of...