State v. Demarr
| Decision Date | 13 August 2003 |
| Docket Number | No. M2002-02603-COA-R3-JV.,M2002-02603-COA-R3-JV. |
| Parties | STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. CARAH PAIGE JONES DEMARR. |
| Court | Tennessee Court of Appeals |
Appeal from the Juvenile Court for Lawrence County No. 050696, Lee England, Judge.
Judgment of the Juvenile Court, Reversed and Remanded.
David L. Allen and C. Wayne Tomerlin, Lawrenceburg, Tennessee, for the appellant, Carah Paige Jones Demarr.
Paul G. Summers, Attorney General & Reporter and Elizabeth C. Driver, Assistant Attorney General, for the appellee, State of Tennessee, Department of Children's Services.
WILLIAM B. CAIN, J., delivered the opinion of the court, in which PATRICIA J. COTTRELL, J., and CAROL J. McCOY, SP. J., joined.
This case involves termination of parental rights of a mother and custody of the child. The child at issue was found wandering away from his mother's house on March 3, 1999, and was taken into DCS custody, after which the matter languished for over a year without appropriate administration by DCS and with the mother having very little contact with her child. The mother eventually moved out of state and requested that her child be transferred to that state. The case was not transferred, and the mother continued to receive very little cooperation from DCS and have sparse communication with her child. She was, however, attempting to fulfill the requirements of the DCS prepared Permanency Plan. Her parental rights were terminated by the Juvenile Court for Lawrence County in December 2001 for abandonment by willful failure to visit and willful failure to support the child for four months prior to the filing of the termination petition. We reverse the trial court's finding that the mother's failure to visit and failure to support was willful.
In January of 1999, Appellant, Carah Paige Jones Demarr, left her "husband"1 in Texas and moved to Tennessee to escape an abusive relationship. When she arrived in Tennessee with her three year old child, K. (the child at issue in this matter), she was pregnant and very close to giving birth. She moved in with her aunt where she resided for approximately five weeks.
On February 17, 1999, Carah gave birth to a daughter who has resided continually with her from birth. After her daughter's birth, Carah experienced complications which she described as a "sack infection." She testified that she was extremely sick and nauseous for several weeks after the delivery.
Around the first of March, she moved into an apartment with her new baby and three year old son. Carah testified that when they moved into the apartment the lock on the exterior door was broken. On March 3, 1999, while she was sick, K. got out of the house and was discovered wandering several blocks away, close to a busy highway. After the child was reported walking near the road, he was taken into police custody; an officer then proceeded to Carah's apartment. Prior to being contacted by the officer, Carah discovered that K. was missing and called to report his disappearance to the police. When the officer arrived at her home, she did not know where K. was. She was subsequently charged with neglect, and K. was turned over to the Department of Children's Services (DCS).
The following day, March 4, 1999, DCS filed its Affidavit of Reasonable Efforts and Petition for Temporary Custody. A Protective Custody Order was issued that same day. At the termination hearing now on appeal, Carah's attorney chose to stipulate to these custody documents. No further evidence was presented by DCS with regard to any investigation into the incident prompting K.'s removal, and DCS offered no testimony or evidence to refute Carah's assertions regarding her post-delivery illness and the conditions under which K. escaped the apartment.
Administratively, it appears from the record that DCS did nothing further in Carah's case until March of 2000, when a Permanency Plan was finally put into place, and the record and testimony reveal little, if anything, that happened between the time the child was taken on March 3, 1999 and December of 1999, when a DCS worker began to take a special interest in Carah's situation. A few phone calls from Carah were recorded prior to December 1999, but the record is devoid of any evidence that anyone at DCS had much direct involvement in her case from March of 1999 until October 16, 1999, when Lisa Morgan became the "team coordinator" for Lawrence County. However, even after Ms. Morgan began work in October, DCS appears to have made no attempt to assist Carah in any way. There is no evidence in the record that anyone informed her of how or when she could regain custody of her child, nor were any services offered to assist her in gaining custody. K. was placed in a foster home fifty miles away from Carah and, under DCS rules Carah was unable to contact K. directly at his foster home. Even phone calls must be made through a DCS office. She had no reliable car, no assistance, a new baby, and at times, no phone.
In November of 1999, Debbie Belew became Carah's case manager. Neither the record nor Ms. Belew's testimony demonstrate any effort on Ms. Belew's part to assist Carah with obtaining public services, daycare, or housing. Another case worker, Shawn Cline, even testified at trial that, as there was no permanency plan, there would have been no way for Carah to regain custody of her son until such time as a permanency plan had been put in place and deemed accomplished. The only assistance Carah received was from a man named Dean Holt who worked for DCS as a foster parent coordinator. Mr. Holt was not her case manager but became interested in the case when he was working with K.'s foster parents and realized he knew K.'s family and had lived with Carah's great grandmother at one time.
Mr. Holt helped get visitation started beginning in December of 1999. He began transporting K. the one hundred mile round trip to a location near Carah where they could have regular visitation. At this time, Carah was living with her grandmother. These visits went extremely well, as evidenced by excerpts from DCS's own records. December 15, 1999: December 29, 1999: January 12, 2000: February 23, 2000: March 29, 2000: April 10, 2000: During this period, Carah also completed a parenting class, even though this was not a requirement of her Permanency Plan, wherein she received an A+.
Mr. Holt next set up a five day visit during which K. was to spend five days with his mother at her grandmother's home. Carah called Mr. Holt the morning the visit was to begin to let him know she was staying with a friend in Lawrenceburg and request that K. be brought there. Mr. Holt refused and stated that the visit would have to take place at her grandmother's house in Waynesboro. Carah testified at the hearing that she had been staying with a female friend in Lawrenceburg who eventually became her roommate. On the day of the visit, she began having car trouble, as she was driving an extremely old vehicle with numerous mechanical problems. She testified that two men were assisting her in trying to fix the vehicle and gave her a ride back to her grandmother's house. Mr. Holt testified that Carah arrived forty-five minutes late for the scheduled meeting and in an extremely irate and irrational state. She stated upon arrival that she would not be staying at her grandmother's house, packed her bags, and left. Carah testified that she spoke with Mr. Holt and was told that she would not be allowed her visitation. She further testified that she contacted Mr Holt later that same day to request that she be allowed to go forward with her five day visit at her grandmother's house. Mr. Holt, again, refused to allow the visit.
Earlier, on March 22 of 2000, a Permanency Plan was finally completed. The plan stated dual goals of "return to parent" and "adoption." Under the section entitled "reasonable efforts," a list of services to assist in preventing removal of the child from the home is provided with the notation to check all the services that were provided in the instant case. Some of the services include daycare, emergency homemaker services, exploration of relative resources, homemaker services, inhome family preservation, and vocational rehabilitation. No items under this section are checked, as it appears that no services were offered to Carah. Under this plan, the issues to be dealt with prior to reunification of Carah and her son were (1) a permanent home, (2) adequate supervision of K., and (3) availability of Carah for K. The "changes expected" section provides: "Carah will have a stable safe home for herself and her two children within six months;" "Carah will demonstrate the ability to provide age -appropriate child care alone or by enlisting the help of another person who is able to provide such care and supervision;" "Carah will show more interest than just with visits, she will send cards, letters, etc. to show [K.] more interest in him."
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