In Re Hailey S.

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs October 4, 2016

IN RE HAILEY S.

Appeal from the Circuit Court for Macon County

No. 2014CV87 Clara W. Byrd, Judge

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No. M2016-00387-COA-R3-JV – Filed December 5, 2016

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This appeal arises from an adjudication of dependency and neglect against the father of a

child born out of wedlock and a denial of an intervening petition for custody filed by the

father‟s relatives. The father and intervening petitioners appeal the circuit court‟s decision.

We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the court, in which FRANK G. CLEMENT,

JR., P.J., M.S., and KENNY ARMSTRONG, J., joined.

Connie Reguli, Brentwood, Tennessee, for the appellants, Matthew S. M., Bobbi DuBoise,

and Will DuBoise.

Herbert H. Slatery, III, Attorney General and Reporter, Andree S. Blumstein, Solicitor

General, and Kathryn A. Baker, Asst. Attorney General, Nashville, Tennessee, for the

appellee, Tennessee Department of Children‟s Services.

Lisa C. Cothron, Lafayette, Tennessee, Guardian ad Litem.

OPINION

I. BACKGROUND

Hailey Ann S. (“the Child” or “Hailey”) was born out of wedlock on August 8, 2012,

to Aren S. (“Mother”) and Matthew S. M. (“Father”) in Johnson City, Tennessee. Mother

and Father attended the same high school in Michigan and met in 2011 during a drug

exchange. When Mother became pregnant, she moved to Tennessee to live with her mother,

Michelle S. Father saw Mother on three occasions after she moved; he then dropped out of

school and came to Tennessee in February 2012. The two argued about Mother‟s drug use,

and they broke up two to three weeks later. At the time of the Child‟s birth in August 2012,

Father returned to Tennessee and stayed with Mother in the hospital for four to five days

before returning to Michigan. Father signed an acknowledgment of paternity two days after

Hailey‟s birth, and her birth certificate bears his name. See Tenn. Code Ann. § 24-7-113.

However, Father later testified that when he signed the acknowledgment of paternity, he

thought he was giving guardianship rights to Michelle S., Mother‟s parent. Father was never

the custodial parent of Hailey, he never had any regular structured parenting time, and he

never established a financial relationship with the Child.

Over the following months, Father saw Hailey on two to three occasions. After

Mother refused to allow him to see the Child, on March 27, 2013, seven months after

Hailey‟s birth, Father filed a petition for visitation in Sumner County.1 His handwritten

petition sought visitation in order for him to have a relationship with his daughter. He later

claimed that he knew of no drug use by Mother at that time. Before a hearing could be held

on Father‟s request for visitation, the Tennessee Department of Children‟s Services (“DCS”)

removed Hailey from Mother‟s custody.2

On June 21 and 22, 2013, when the Child was ten months old, Mother attended a party

where drugs were in use. Mother later admitted to DCS to ingesting 23 Klonopin pills and 8

Valium pills, along with smoking half a joint of marijuana. Hailey was left without proper

supervision at the party and suffered physical abuse. Mother informed interviewers that

“Matthew Marble” was Hailey‟s father but did not provide DCS contact information for him.

After DCS determined that there was no less drastic alternative than removal of the Child

from Mother, who was still a minor herself, temporary legal custody of Hailey was awarded

to the state by the juvenile court. DCS‟s petition alleged that Father was “unknown in the

power of attorney” provided by Mother. No allegations were made against Father at that

time.

On June 23, 2013, Hailey was placed in the foster home of Dana D. (“Foster Mother”)

and Brandon G. (“Foster Father”) (collectively, “Foster Parents”). When Foster Parents took

her in, the Child exhibited bite marks and bruises on her face, scabs under her eye, and

bruising on her stomach and feet. Foster Parents observed that Hailey did not want to be held

1

The case originated in Sumner County but was transferred to Macon County in July 2013, upon the

request of DCS.

2

Mother surrendered her parental rights to Hailey in September 2014 and is no longer a party to the

litigation involving the Child.

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and did not make eye contact; she cried and could not be soothed.

Shortly after the Child‟s placement with Foster Parents, she was examined by a

pediatric neurologist, Dr. Marcos Cruz. An MRI revealed a micro-hemorrhage in the Child‟s

brain due to trauma. Consistent with such trauma, her gross and fine motor functions were

affected by weakness on her left side (hemiparesis). Dr. Cruz diagnosed Hailey with cerebral

palsy--a brain injury before the age of one. Other diagnoses for the Child included epilepsy,

cortical vision impairment, fetal alcohol spectrum disorder, ADHD, drug exposure in utero,

and autism spectrum disorder. Around the same time, Hailey received an evaluation from

Tennessee Early Intervention System (“TEIS”) and began developmental therapy with

Rainbow Early Intervention.

About eight or nine days after Hailey was removed from Mother‟s custody, DCS

finally made contact with Father in Michigan. Interviews with Father revealed some past

drug use on his part and a seizure disorder. However, he had not experienced any seizures in

over a year and was not on medication. Father admitted that he lived with his grandmother

and did not have a way to support himself or the Child. The Interstate Compact on the

Placement of Children (“ICPC”) was discussed with Father and his mother during these

beginning conversations. See Tenn. Code Ann. §§ 37-4-201 to -207.

When a child enters foster care, Tennessee law requires the development of a plan of

care. Within that plan are included parental responsibilities that are reasonably related to the

plan‟s goal. Tenn. Code Ann. § 37-2-403(a)(2)(A). Initially, Father did not get involved in

the permanency plan process, stating that he was advised not to participate. Despite his lack

of involvement at that point, DCS mailed a copy of the permanency plan to Father, along

with materials on parenting, employment, and communicating with children through play.

Because of his lack of housing or means of support, it appears that DCS did not pursue

Father as a placement for Hailey.

In September 2013, Father became involved in revising the permanency plan. Per the

plan‟s requirements, he was expected to complete a mental health assessment and to follow

the recommendations, pay child support, establish and maintain a home and a legal means of

income through employment or public benefits, develop and maintain a relationship with

Hailey, take a parenting class, and be further evaluated and receive clearance regarding his

seizure disorder. He was also required to submit child support. In an effort to assist Father,

the caseworker and supervisor at DCS provided their contact information, helped him

determine if he had insurance coverage for mental health and alcohol and drug (“A&D”)

treatment, attempted to set up mental health services for him, searched for Michigan

resources and provided this information to Father, attempted to set up appointments for him

in Michigan, arranged visitation, offered and paid for transportation and lodging for Father,

kept in touch with him, provided redirection during and reports about visitation, paid for

paternity testing and explained the results, paid for Father‟s mental health and A&D

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assessment and explained the results, and provided therapeutic visitation.

Early in September 2013, DCS filed an amended petition alleging that Hailey was

dependent and neglected as to Father because he had failed to file a petition to legitimate the

Child and had failed to protect her from Mother‟s drug use. On October 3, 2013, the results

of DNA testing were filed, revealing that Father indeed was the biological father of the

Child.

Around this time, Father and his mother approached his aunt and uncle, Will and

Bobbi DuBoise, about being a possible placement for Hailey. The DuBoises live in

Michigan, approximately 20 to 30 minutes from Father. Upon learning of the ICPC process,

Ms. DuBoise immediately began pursuing foster care licensure in Michigan. By November

2013, Ms. DuBoise was attending DCS‟s foster care review board meetings, began traveling

regularly to Tennessee with Father to visit with Hailey, and contacted Michigan doctors in

preparation for having the Child in their home. DCS initiated the ICPC process for both

Father and the DuBoises (collectively, “Appellants”) and submitted requests to Michigan in

January 2014. During the ICPC investigative process, Father related that his relationship

with Mother ended because he “was angry with her that she was continuing to do drugs while

she was pregnant.” He also stated that “it took him awhile to learn it was better to just send

the items that Hailey needed versus the money because [Mother] used the money for drugs

and other things.” The Michigan investigator denied Father‟s ICPC request because he could

not support himself or Hailey and was reliant upon his grandmother for housing.

Meanwhile, Father completed a mental health and A&D assessment in Tennessee in

February 2014. The counselor, Jerri Cross, noted that Father displayed some cognitive

distortion and memory issues. During the assessment, Father mentioned a “dark time” which

he refused to discuss. He was diagnosed with Post Traumatic Stress Disorder (“PTSD”) and

Depressive Disorder Not Otherwise Specified. He received two “rule-out” diagnoses of

Pervasive Developmental Disorder (Asperger‟s) and Cognitive Learning Disorder – these

diagnoses required that Father be observed over time for further assessment. The counselor

recommended that Father attend individual counseling to address his PTSD, depressive

symptoms, and past history of trauma; that he obtain a mental health medication management

assessment to determine if he needed medication; that he complete parenting education; that

he be involved in Hailey‟s therapies to learn about her needs; and that he continue with his

plans of obtaining his GED and employment.3

3

Father has pinguecula, an accumulation of connective tissue that thickens the conjunctiva.

Steadman’s Medical Dictionary (27th ed.) at 1385. According to Father, he is legally blind in one

eye. He has been diagnosed with ADHD and was previously on medication. Father also claims to

“suffer[] from cognitive and development[al] delays such that it creates a substantial limitation on

his major life activities.” Marble v. State, No. 3-15-0508 (M.D. Tenn.).

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Between 2010 and 2015, Father was seen by a Michigan therapist of his choosing

intermittently on seven occasions. In December 2013, Father approached the therapist

requesting a letter to prove that he was not a risk to Hailey. Because he had not seen Father

for a period of time, the therapist explained that he could not provide such a letter. He

discussed various options and recommended an independent personality assessment.

According to the therapist, Father expressed no interest. He referred Father to Behavioral

Health Resources, but the therapist did not know if Father had followed up. The therapist

testified that in 2014, Father told him that “he really didn‟t want anything from treatment

other than to meet the [DCS] requirements.” In March 2015, the therapist reported to DCS

that Father had a bad attitude toward counseling: “Father „blames Tennessee and takes zero

responsibility for his child being in custody. [Father] is focusing on how to fight the system

instead of work with the system.‟”

As to the other aspects of the permanency plan, when Father was asked by DCS if he

needed assistance with anything, he declined all help. The record does reveal that Father

attended parenting classes through Fatherhood Connections in Michigan, signed medical

release forms, and submitted to random drug screens. He did not remit child support.

Meanwhile, the DuBoises‟ ICPC request was ultimately approved, effective April 9,

2014, and DCS moved in July 2014 to place Hailey with the couple for a trial home

placement. However, on August 1, 2014, the Child‟s then guardian ad litem filed an

objection. She complained that a new home study was needed because additional foster

children had been accepted into the DuBoise home. She also contended that the Child‟s best

interests were not served by her removal to Michigan, noting Hailey‟s medical condition and

that Mother was still entitled to visitation in Tennessee at least twice monthly at that time.

Mother also expressed her disagreement with the placement. After a hearing on August 8,

2014, the court denied the trial home placement motion, finding “that it [was] not in the best

interest of the [C]hild to be placed in Michigan.” The DuBoises filed an intervening petition

for custody and a motion to intervene in the juvenile court on August 12, 2014.

DCS filed a petition to terminate Father‟s parental rights on September 18, 2014,

alleging that termination was supported by the statutory grounds of (1) abandonment for

failure to remit support, (2) substantial noncompliance with the permanency plans, and (3)

the persistence of conditions which led to removal. For some reason, Father stipulated to

dependency and neglect in the juvenile court proceeding due to his failure to legitimate

Hailey; he also admitted to lack of stable housing. After the juvenile court adjudicated

Hailey dependent and neglected on September 29, 2014, and denied the DuBoises‟ motion to

intervene, Appellants appealed to the circuit court. The court then denied their motion to

continue the termination proceeding, finding that the termination proceeding was an

independent action.

On April 21, 2015, the first day of the circuit court‟s de novo review of the

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dependency and neglect finding, Appellants moved to dismiss the September 2013 petition,

since Father was Hailey‟s legal parent and DCS had informed counsel that it was not

proceeding under a theory of severe abuse. DCS does not deny that it had declared that it did

not intend to pursue a severe abuse finding against Father. However, the circuit court

granted DCS leave to amend its petition. When the hearing resumed on May 5, 2015, DCS

filed its second amended petition, in which it asserted that the Child was dependent and

neglected as to Father who “failed to protect his child from the drug use by the mother.”

DCS also contended that Father had “admitted in court . . . that he cannot care independently

for his child.”

Father argued that his due process rights of notice and opportunity to be heard were

violated by the court‟s allowance of the amended petition. However, he failed to establish

that he was harmed by the amendment. One reason for allowing the amendment was to

include a statement that Father made on the first day of trial in which he admitted that he

could not care for the Child. Also, the bulk of the testimony and evidence was not taken until

eight months after DCS filed the amended petition. By the time the trial resumed on January

12, 2016, Appellants had notice of what the petition included and enough time to prepare

Father‟s defense. See Northeast Knox Utility Dist. v. Standfort Constr. Co., 206 S.W.3d 454,

459 (Tenn. Ct. App. 2006). Thus, the court did not abuse its discretion when it allowed the

amendment. State, Dep’t of Human Servs. v. Hauck, 872 S.W.2d 916, 918-19 (Tenn. Ct.

App. 1993) (citing Derryberry v. Ledford, 506 S.W.2d 152, 156 (Tenn. Ct. App. 1973)). The

circuit court also was permitted to go beyond the dependency and neglect petition to make its

own determination that Father committed severe abuse. Tennessee Code Annotated section

37-1-129(a)(2) provides: “If the petition alleged the child was dependent or neglected as

defined in § 37-1-102(b)(12)(G), or if the court so finds regardless of the grounds alleged in

the petition, the court shall determine whether the parents or either of them or another person

who had custody of the child committed severe child abuse.” (Emphasis added.). DCS had

properly petitioned the court to find the Child dependent and neglected under the definition

provided in Tennessee Code Annotated section 37-l-102(b)(12) and included facts about

Hailey‟s status to demonstrate that she met the definition. The circuit court recited in its

order part of the statutory definition of a dependent and neglected child and included

subsection (b)(12)(G): a child who is suffering from abuse and neglect.

The circuit court trial spanned ten months: April 21 and May 5, 2015, and January 12

through 15, 2016. After the first two days of trial, the court entered a stay when DCS

announced that Father‟s parental rights had been terminated in the separate proceeding on

April 30, 2015, and that Father had sued DCS in federal court. Father‟s federal court action

argued that parents with disabilities were entitled to greater flexibility from DCS. See

Marble v. State, No. 3:15cv-0508 (M.D. Tenn.). Once Father‟s parental rights were

terminated in April 2015, he was allowed no further contact with Hailey.

On November 16, 2015, the Tennessee Supreme Court granted Appellants‟

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application for extraordinary appeal under Rule 10 of the Tennessee Rules of Appellate

Procedure, vacated the stay, and remanded the case to the circuit court with instructions to

finish conducting the dependency and neglect appeal. Thereafter, the circuit court decided

that the DuBoises would be heard on the issue of whether they should be a placement for

Hailey.

In December 2015, Father suffered his first seizure in three years. Although he had

been medically cleared to obtain a driver‟s license in October 2013, he had not yet obtained

one. At trial, Ms. DuBoise opined that Father was afraid to drive, fearful of the onset of a

seizure. Father also had not completed his GED, despite working on it for about two years.

He had not been able to find a job he could keep and did not have a job or monthly income.

At trial, the court heard evidence regarding the ability of Father and the DuBoises to

provide a home for the Child. Hailey‟s current situation with Foster Parents was also

addressed. Further, the testimony reviewed Hailey‟s occupational and physical therapy; she

had 37 therapy appointments per month, some at home and others at daycare. Her physical

therapist testified that Father and the DuBoises had not attended any appointments with him

since he started working with Hailey in January 2014. The record revealed that Father

attended one physical therapy appointment with a prior therapist (September 17, 2013) and

one well-check medical visit (August 8, 2014). The physical therapist related that it was

important for Hailey‟s caregivers to be involved in working with her and to be

knowledgeable about her needs because the daily home exercise program prevented

regression. Foster Mother had attended most therapy sessions. According to Foster Parents,

car trips of more than 30 to 45 minutes would cause the Child to vomit. Also, the Child was

prone to “sensory meltdowns”--screaming, throwing herself on the ground, and shaking. To

prevent these episodes, Hailey, very routine oriented, participated in sensory input activities

every two hours. The neurologist stated that the most important factor in Hailey‟s health was

the day-to-day care she received, and he described the Child‟s current care as excellent.

Hailey also visited multiple doctors on a regular basis: the orthopedist every two months, the

dentist every six months, the neurologist every three months, the ophthalmologist every two

months, the developmental pediatrician as needed, the psychiatrist twice per month, and her

primary care physician at least once per month.

The record revealed that Father visited Hailey on a monthly basis, often with the

DuBoises. Foster Parents supervised some visitation until DCS provided therapeutic

visitation in 2014. Ms. DuBoise, while admitting that Father had a lot to learn, believed that

her nephew did a great job playing with Hailey and had the potential to be a good father.

However, Foster Mother opined that Father was sometimes inappropriate at visits because he

needed additional parenting education on changing diapers, proper interaction, proper

feeding, and addressing Hailey‟s sensory input needs. At one visitation, the Child fell off a

bench because Father did not support her back. He also taught Hailey to stick her tongue out

at people. According to Foster Mother, after visits, Hailey would lick furniture, rock, shake,

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clench her fists, bang her head, kick, and bite herself because she was not on her normal

sensory input schedule. She recalled emailing Father in January 2015 to let him know that

Hailey had experienced a seizure and that there was an upcoming TEIS meeting; Father,

without expressing concern or asking any questions about Hailey‟s condition, responded that

he could not make the TEIS meeting.

Foster Father testified that after visitation, Father would not clean up the meeting area

until his family helped him. He recalled Father arguing with the Child on the telephone in

January 2015 to call him “daddy” and not “Matt.” Foster Father further noted that Hailey

would become agitated after phone calls with Father when she had been corrected. Once,

after a phone call with Father in February 2015, the Child took off all of her clothes and

urinated on the floor. The guardian ad litem described Father as “unfit to properly care for

Hailey due to mental incapacity.”

Mr. DuBoise asserted to the court that “family should stay with family” and that

“[f]amily should help family.” He observed that Hailey could receive all necessary therapies

and medical treatment in Michigan. Father acknowledged that he was unable to

independently care for Hailey and that he was reliant upon his family‟s assistance. He

admitted that he was not asking for Hailey to be placed in his home because he knew that he

could not provide for her financially or physically. Father indicated that he was asking

“pretty much to still remain a parent and be able to be a father to my daughter and, you know,

be able to support her financially when I‟m on my feet.”

As of the conclusion of the trial, Hailey was around three and a half years old and had

lived with Foster Parents for 30 months--approximately two-thirds of her life. The Child had

never lived with Father. The DCS caseworker, Lindsay Kenyon, initially supported placing

Hailey with the DuBoises in August 2014, but by January 2016, she believed that it was in

the Child‟s best interest to remain with Foster Parents, whom Hailey referred to as “daddy”

and “mommy.” Ms. Kenyon opined that Hailey would be traumatized if she were removed.

DCS further noted that the Child was well cared for and happy with Foster Parents, who were

financially secure and willing to adopt Hailey if that proved to be an option.

After hearing all the testimony and proof, the circuit court concluded that Hailey was

“dependent and neglected within the meaning of the law.” The court found that Father was

unable to provide for [the Child] physically, emotionally, and financially,” and that Father

himself “has determined that he is not able to parent his child.” The court observed that “in

the 2 and 1/2 years that this case has been pending [Father] has made no progress. He still

lives in Michigan with his father and grandmother; he still has no driver‟s license; he still

does not have his GED; and he still does not support himself.” The court specifically ruled as

follows:

[T]here is no reason he can‟t provide. The testimony has been

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that he‟s not able to keep a job, but he does not have any

disability that prevents him from working. He doesn‟t have a

disability that prevents him from finishing his GED or from

finishing his education. He doesn‟t have a disability that

prevents him from passing a test and driving.

Additionally, having found that the Child had multiple medical issues, the court concluded

that “Hailey would be subject to an immediate threat to her safety if she were in the hands of

her father.”

The court further determined that Hailey was “a victim of severe child abuse

perpetrated by [Father] because he knowingly failed to protect the child from the abuse.”

The court found that “[Father] absolutely knew [Mother] had a drug history and was doing

drugs when he came to Tennessee. He saw her. He argued with her. He knew it was not safe

for the Child to ever be with a mother who was doing drugs. Father failed to protect the Child

when he knew she was in harm‟s way by virtue of this mother.”

In regard to the DuBoises, the court noted that they “sound like excellent parents and

excellent foster parents” but explained that it “ha[d] to consider what is in the best interests

of Hailey.” The court stated,

“[T]he problem in this case” was that Father lived in Michigan;

Mother had moved to Tennessee before Hailey was born; Hailey

was severely abused, and DCS needed to remove her from

Mother‟s custody; Mother did not know where Father was at the

time; DCS did not know about the DuBoises at the time; and

thus Hailey was placed in a foster home, which was “an

excellent foster home.” After that, while DCS worked toward

reunification, “time passed”: Approximately 2 and 1/2 years

have passed and Hailey has bonded with Foster Parents and their

children. We know that if she stays in her current placement she

will continue to progress.

Appellants‟ counsel argued that the DuBoises were “punish[ed] for time . . . [a]nd it

[was] not their fault.” They were “diligent,” “pursued it,” and did “everything they could.”

Both Father and the DuBoises filed timely appeals from the circuit court‟s order. On May

31, 2016, this court affirmed the termination of Father‟s parental rights; Father filed a

petition to rehear, which was denied on July 1, 2016. See In re Hailey S., No. M2015-00842-

COA-R3-PT, 2016 WL 3209444 (Tenn. Ct. App. May 31, 2016).

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II. ISSUES

The issues raised in this appeal by Appellants are restated as follows:

1. The trial court erred in finding that the Child is dependent

and neglected as to Father.

2. The trial court erred in finding that Father had committed

severe abuse for failure to protect.

3. The trial court erred in placing custody of the Child with

DCS instead of placing custody with the relatives.

4. The state failed to make reasonable efforts for

maintaining the parental rights of Father. The state is

collaterally estopped from denying Father‟s disability and

therefore, the Americans with Disabilities Act applies,

notwithstanding the court‟s finding that Father was not disabled.

5. The obstruction of a timely adjudication of this matter

was prejudicial to the rights of Father and the intervening

petitioners.

III. STANDARD OF REVIEW

We review the trial court‟s findings of fact de novo, accompanied by a presumption of

correctness, unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d); In re

D.Y.H., 226 S.W.3d 327, 329 (Tenn. 2007). As we discussed in In re: H.A.L.:

Tenn. R. App. P. 13(d) requires us to defer to the trial court‟s

specific findings of fact as long as they are supported by a

preponderance of the evidence. However, we are the ones who

must then determine whether the combined weight of these facts

provides clear and convincing evidence supporting the trial

court‟s ultimate factual conclusion.

In re: H.A.L., No. M2005-00045-COA-R3-PT, 2005 WL 954866, at *4, n. 10 (Tenn. Ct.

App. Apr. 25, 2005). We review conclusions of law de novo without a presumption of

correctness. In re D.Y.H, 226 S.W. 3d at 329.

A child‟s status as dependent and neglected must be proven by clear and convincing

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evidence. Tenn. Code Ann. § 37-1-129(c)(2014); see In re S.J., 387 S.W.3d 576, 587 (Tenn.

Ct. App. 2012); In re Gaven R., No. M2005-01868-COA-R3-CV, 2007 WL 2198288, at *7

(Tenn. Ct. App. July 23, 2007). A finding of severe child abuse must also be established by

clear and convincing evidence. Such evidence eliminates any real doubt about the

correctness of the conclusions drawn from the evidence.” In re Isaiah L., 340 S.W.3d 692,

705 (Tenn. Ct. App. 2010).

IV. DISCUSSION

A.

A biological parent‟s right to the care and the custody of his child is among the oldest

of the judicially recognized liberty interests protected by the due process clauses of the

federal and state constitutions. Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054 (2000);

In re Adoption of A.M.H., 215 S.W.3d 793, 809 (Tenn. 2007). As our Supreme Court

recognized in In re Swanson, 2 S.W.3d 180 (Tenn. 1999):

Both the United States and Tennessee Constitutions protect a

parent‟s right to the custody and upbringing of his or her child. .

. . [T]he United States Supreme Court held that an unwed father

was entitled, as a matter of due process, to a hearing on his

fitness as a parent before his children were taken from him. The

Supreme Court has also emphasized that unwed fathers must

seize upon the opportunity to shoulder significant responsibility

for the child’s rearing before due process rights are implicated.

Once that opportunity has been seized, the child may not be

removed in the absence of a finding of parental unfitness.

In re Swanson, 2 S.W.3d at 187 (internal citations omitted)(emphasis added). The Tennessee

Constitution “provides for a parental right to privacy to care for children without unwarranted

state intervention unless there is a substantial danger of harm to the child [ ].” Id. (citing

Hawk v. Hawk, 855 S.W.2d 573, 579 (Tenn. 1993)). However, while this right is

fundamental and superior to the claims of other persons, it is not absolute. DCS v. C.N.K.,

154 S.W.3d 584, 589 (Tenn. Ct. App. 2004). The Tennessee legislature has established the

situations in which the rights of the biological parent may be limited. In re Samaria S., 347

S.W.3d 188, 201 (Tenn. Ct. App. 2011). These limitations include circumstances in which a

child is deemed to be dependent and neglected. Id. “Parents have a duty to provide, and

children have a corresponding right to be provided with a safe environment, free from abuse

and neglect.” In re H.L.F., 297 S.W.3d 223, 235 (Tenn. Ct. App. 2009).

The state, through its parens patriae power, has the duty to intervene and protect a

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child when the child‟s well-being is threatened. Tennessee Code Annotated section 37-1-

102(b)(12) defines a dependent and neglected child as a child: “. . . (B) Whose parent,

guardian or person with whom the child lives, by reason of cruelty, mental incapacity,

immorality, or depravity is unfit to properly care for such child; . . . (F) Who is in such

condition of want or suffering or is under such improper guardianship or control as to injure

or endanger the morals or health of such child or others; . . . .” After the de novo review, the

circuit court found Hailey to be a dependent and neglected child under Tennessee Code

Annotated section 37-1-102(b)(12)(B) & (F). The court additionally concluded that Hailey

was a child who was suffering from abuse and neglect under subsection (b)(12)(G).

Father admitted in court that he could not care for the Child as he could not support

her financially or physically. He had not been able to find a job that he could keep; he was

not working and had no monthly income. In January 2016, when the circuit court trial

concluded, Father claimed that his trips to Tennessee interfered with his ability to work and

that he could not keep a job because he did not have his GED. However, the proof at trial

revealed that Father came to Tennessee twice in one month only one time during the entire

relevant time period. Further, Father did not yet have his GED despite working to obtain it

for about two years. He testified that he was currently looking into getting SSI and disability

benefits on the advice of his attorney, but he waited to apply for benefits until four to five

months after the termination of parental rights trial. Father never completed the required

mental health treatment and never applied for government housing. He did not attend the

Child‟s medical or therapy appointments to learn how to care for her special needs. The

court observed that Father “has significant limitations in his ability to comprehend” and “has

issues,” but has shown “no proof that he has any disability that keeps him from working.” If

Hailey were placed in Father‟s care, the evidence demonstrated that he would not be able to

care for her. With these considerations in mind, we conclude that the court did not err in

adjudicating Hailey as dependent and neglected under Tennessee Code Annotated section 37-

1-102(b)(12)(B) & (F).

B.

The court found Hailey to be a victim of severe child abuse perpetrated by Father

“because he knowingly failed to protect the child from the abuse.” Severe child abuse is

defined as:

(A)(i) The knowing exposure of a child to or the knowing

failure to protect a child from abuse or neglect that is likely to

cause serious bodily injury or death and the knowing use of

force on a child that is likely to cause serious bodily injury or

death;

....

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(B) Specific brutality, abuse or neglect towards a child that in

the opinion of qualified experts has caused or will reasonably be

expected to produce severe psychosis, severe neurotic disorder,

severe depression, severe developmental delay or intellectual

disability, or severe impairment of the child‟s ability to function

adequately in the child‟s environment, and the knowing failure

to protect a child from such conduct[.]

Tenn. Code Ann. § 37-1-102(b)(21)(A) & (B). The definition expressly contemplates that

knowing failure to protect from severe abuse is itself severe abuse.

“Knowing” includes when a person has actual knowledge of the relevant facts and

circumstances and when a person is in deliberate ignorance or reckless disregard of the

information presented to him. In re Caleb J. B.W., No. E2009-01996-COA-R3-PT, 2010 WL

2787848, at *5 (Tenn. Ct. App. July 14, 2010); In re R.C.P., M2003-0l143-COA-R3-PT,

2004 WL 1567122, at *7 (Tenn. Ct. App. July 13, 2004). Accordingly, the “knowing”

standard is met when a parent is present during the abuse but fails to intervene and when a

parent is “presented with sufficient facts from which he or she could have and should have

recognized that severe child abuse had occurred or that it was highly probably that severe

child abuse would occur.” Further, prenatal drug use constitutes severe child abuse under

Tennessee Code Annotated section 37-1-102(b)(21); In re Benjamin M., 310 S.W.3d 844,

847-51 (Tenn. Ct. App. 2009).

As argued by DCS, Father knew that Mother was using drugs when he saw her in

Tennessee while she was pregnant with Hailey. He argued with her about it and eventually

broke up with her because of it. Father acknowledged sending in-kind gifts to Mother while

she was pregnant instead of money because he knew she was using the money for drugs.

Despite knowing that Mother continued to use drugs while she was pregnant with Hailey,

Father did not attempt legal intervention during the pregnancy. Additionally, he failed to

attempt to obtain custody of the Child after she was born and prior to her being abused.

When he filed a visitation petition in March 2013, Father‟s reason was because he was upset

that Mother was preventing him from seeing Hailey, not out of concern for the Child‟s well-

being. Mother‟s prenatal drug use constituted severe child abuse, but Father‟s failure to

intervene despite his knowledge of her drug use also constituted severe child abuse because

he failed to protect the Child. The record further reveals that Father knew Mother

participated in a drug rehabilitation program at some point. The evidence clearly and

convincingly supports the finding of the circuit court that Father failed to protect Hailey

under Tennessee Code Annotated Section 37-1-102(b)(12)(G) & (21)(A) & (B).

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C.

Once a court determines that a child is dependent and neglected, it attempts to make

the “disposition best suited to the protection and physical, mental and moral welfare of the

child.” Tenn. Code Ann. § 37-1-130(a). The court may “permit the child to remain” with her

parents, guardian, or other custodian; or transfer temporary legal custody to an individual

“qualified to receive and care for the child” or to DCS. Tenn. Code Ann. § 37-1-130(a)(l) &

(2). Appellants challenge the circuit court‟s determination that DCS should retain custody of

Hailey. They argue that the court erred in not placing the Child in their custody.

Father did not seek custody of Hailey for himself, but sought to have her placed with

the DuBoises. The circuit court recognized that the DuBoises appear to be good people but

also that transferring Hailey to their care in January 2016 would be detrimental to the Child.

Appellants appear to complain less about the circuit court‟s 2016 order and more regarding

the issues surrounding when the juvenile court had jurisdiction of the case in 2014. They

contend that DCS had a duty when the Child was taken into custody to perform a diligent

search for the parents and relatives of the Child to see if there was an appropriate placement

to maintain the family integrity. According to Appellants, DCS did not perform a diligent

search, despite having the Child‟s birth certificate bearing Father‟s name. Appellants also

argue that natural parents may be deprived the right of custody only upon a showing of

substantial harm to the Child. According to Appellants, the State could not move to the best

interest of the child analysis until it established that Hailey was dependent and neglected as it

related to Father. Alternatively, they argue that the “best interests of the child” standard also

requires “a balancing of the child‟s interest in preserving the parent-child relationship, an

interest shared by the parents, against any competing interests of the child.” In re M.G., 407

N.W.2d 118, 121 (Minn. Ct. App. 1987).

Federal law requires that states give a preference to a relative over an unrelated

prospective foster parent, provided that the relative satisfies the pertinent child protection

standards. See 42 U.S.C.A. § 671(a)(19). However, the law mandates that “the child‟s

health and safety shall be the paramount concern.” Pub. L.No. 105-89, § 101(a)(A), 111 Stat.

at 2116. Tennessee Code Annotated section 37-2-403(a)(1) and (d) note the preference for

family placement in foster care. These code provisions apply to “placement immediately

after removal from the home.” In re S.B., No. M1999-00140-COA-R3-CV, 2000 WL 575934

at *4 (Tenn. Ct. App. 2000). There is no preference for a relative after a child has been in

foster care for an extended time. See In re Adoption of A.K.S.R., 71 S.W.3d 715, 720 (2001).

As observed by the guardian ad litem, Father had no custody rights to Hailey at the

time of the Child‟s injury and has never had such rights, as “absent an order of custody to the

contrary, custody of a child born out of wedlock is with the mother.” Tenn. Code Ann. § 36-

2-303. A biological father who has signed an “acknowledgement of paternity” is declared

the legal father with the obligation to pay support and the right to be given notice in the event

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of litigation or attempted termination of parental rights/adoption. The acknowledgment does

not vest any custody rights or visitation rights upon the legal father.

DCS contends that because Father never had custody of the Child and was not granted

custody of Hailey by any court, the ICPC was applicable to him. Tenn. Code Ann. § 36-2-

303. Only if Father were granted full and unfettered custody of Hailey would the ICPC not

apply. Tenn. Code Ann. § 37-4-201, art. Ill (a); see H.P. v. Dep’t of Children and Families,

838 So.2d 583, 585-86 (Fla. Dist. Ct. App. 2003) (holding the ICPC applicable to the

placement of children with their nonresident mother where the trial court had retained

jurisdiction “in order to monitor the father‟s performance under the case plan and consider

whether future reunification was possible.”). Accordingly, placing Hailey with Father in

contravention of Michigan‟s denial of his ICPC would have violated the compact. Tenn.

Code Ann.§ 37-4-201, art. IV.

When the court considered the Child‟s best interests at the relevant time of the de

novo appeal, it decided that Hailey should remain with her foster family:

While DCS was trying to reunite the child with the parents, time

passed. This child was fortunate to have been placed in an

excellent foster home. Approximately 2 and 1/2 years have

passed and Hailey has been in the same foster home. She has

bonded with the foster parents and their children. She has made

so much progress in the foster home. She is already in multiple

therapies in her community. If she were to go to Michigan she

would have to obtain new services there and no one can say how

long it would take to get those services. However, we know that

if she stays in her current placement she will continue to

progress.

In a de novo appeal, the circuit court must determine whether a child is dependent and

neglected at the time it holds the trial and not at the time the juvenile court held trial. See,

e.g., In re Landon H., M2014-01608-COA-R3-JV, 2016 WL 762741, at *6 (Tenn. Ct. App.

Feb. 25, 2016).

In In re Adoption of A.M.H., 215 S.W.3d 793 (Tenn. 2007), the Court addressed

“evidence of substantial harm aris[ing] from the delay caused by the protracted litigation.”

The Court determined that “[e]vidence that [child] will be harmed from a change in custody

because she has lived and bonded with the [foster family] cannot constitute the substantial

harm required to prevent the parents from regaining custody.” Id. at 812. The Court has

further observed that it “previously rejected the contention that when a child has been in the

custody of a non-parent for a significant period of time, a lesser standard may be applied in

determining whether parental rights may be terminated. In re Swanson, 2 S.W.3d at 188 n.

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13.

In this case, the record supports the circuit court‟s decision. It would be adverse to the

best interest of the Child to totally uproot her from the home she has known for most of her

life. Hailey appears to be thriving in the foster home and has forged a parent-child bond with

Foster Parents, referring to them as mommy and daddy. Dr. Cruz described Hailey‟s current

care as excellent, and expressed the opinion that a new caregiver might be detrimental to the

Child‟s recovery. Under the facts of this matter, Father did not have custody of Hailey for

the first ten months of her life and visited with her only a few times. Unlike the situation in

In re Adoption of A.M.H., because neither Father nor the DuBoises had custody of the Child

previously, there was no custody to regain. Id., 215 S.W.3d at 812-13. Further, Father was

not interested in parenting Hailey while receiving assistance in his own home; rather, he

wanted the Child to live with the DuBoises while he lived elsewhere. The DuBoises

sincerely believed that Hailey should live with them, but Ms. DuBoise agreed that Foster

Parents had become part of Hailey‟s family, just as the children she had fostered were part of

her family. Despite this acknowledgment, Appellants continued to focus on Father‟s ability

to see Hailey, even if only a few times a month, in contrast to what was actually best for the

Child. “A child‟s blood ties to a potential placement family do not override” consideration of

what is best for the child. See In re Isaiah R., 480 S.W.3d 535, 540 (Tenn. Ct. App. 2015).

Where the interest of a child and the interest of an adult are in conflict, such conflict must be

resolved in favor of the child. Tenn. Code Ann. § 36-1-101(d).

D.

Appellants argue that DCS did not make reasonable efforts to assist Father under

Tennessee Code Annotated section 37-1-166(g) or the Americans with Disabilities Act

(“ADA”), and that this failure is a defense to an adjudication of dependency and neglect.

The ADA provides only that “no qualified individual with a disability shall, by reason of

such disability, be excluded from participation in or be denied the benefits of the services,

programs, or activities of a public entity, or be subjected to discrimination by any such

entity.” 42 U.S.C.A. § 12132. The circuit court found that Father was not a disabled

individual under the ADA. Even assuming that Father was disabled under the ADA, he was

not denied benefits or services--DCS assisted Father throughout the case. As the circuit court

determined, DCS “did everything it could to get this child back to its parents.” DCS is only

required to make “reasonable efforts”; it cannot force parents who are uncooperative to

participate. Under the facts of this case, Father did not “seize upon the opportunity to

shoulder significant responsibility for the child‟s rearing.” See In re Swanson, 2 S.W.3d at

187. Further, dependency and neglect proceedings determine the status of a child and are not

a proceeding against a parent. See State, Dep’t. of Children’s Servs. v. Huffines-Dalton, No.

M2008-01267-COA-R3-JV, 2009 WL 1684679, at *7 (Tenn. Ct. App. June 15, 2009). Any

reasonable efforts made by DCS are not primarily for the parent‟s benefit; rather, “the child‟s

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health and safety shall be the paramount concern.” Tenn. Code Ann. § 37-1-166(g)(l).

Accordingly, we agree with the circuit court that the ADA was not relevant to whether Hailey

was dependent and neglected; neither Tennessee Code Annotated section 37-1-166 nor the

ADA provides a defense to the adjudication of dependency and neglect.

E.

Tennessee Code Annotated section 37-1-159(c) provides that when an appeal is

perfected from the juvenile court in a dependency and neglect proceeding, the juvenile court

record shall be delivered to the circuit court and that the de novo appeal in the circuit court

shall be held within 45 days of receipt of the juvenile court‟s findings and reports.

Appellants assert that this rule was violated in this case, that DCS was solely at fault for the

delay, and that they were prejudiced as a result.

Tennessee Code Annotated section 37-1-159(c) does not provide a remedy for a

court‟s failure to proceed within 45 days. Cf. Tenn. Code Ann. § 36-1-113(k) (providing that

if a termination of parental rights hearing is not heard within six months, a party has

“grounds to request that the court of appeals grant an order expediting the case at the trial

level”). This court indicated in In re Caleb that an argument based on a violation of this

statute has merit only if the party can show prejudice. 362 S.W.3d at 594.

“It is a general rule that statutory provisions which relate to mode or time of doing an

act to which the statute applies are not held to be mandatory, but are held to be directory only,

especially when there is no showing of prejudice to the one seeking to invoke the time limit.”

In re Caleb, 362 S.W.3d 581, 594 (Tenn. Ct. App. 2011) (quoting State v. Guinn, 02A01-

9607-CV-00152, 1997 WL 15237, at. *2 (Tenn. Ct. App. Jan. 17, 1997)).

The juvenile court‟s final order was entered on January 20, 2015. The first hearing

was held on April 21, 2015, after delays caused by an attorney‟s health and ice storms.

Appellants admitted that these were “reasonable” delays. After learning on the second day of

trial, May 5, 2015, that Father had sued the other parties and attorneys involved in the case,

the circuit court stayed the appeal until ordered by the Supreme Court to proceed. “A trial

court has broad discretion in the conduct of trials and the management of its docket.” Justice

v. Sovran Bank, 918S.W.2d 428, 429-30 (Tenn. Ct. App. 1995). We find no abuse of

discretion under the circumstances herein presented. Therefore, failure to comply with the

45-day time provision did not require dismissal of the case due to prejudice.

V. CONCLUSION

The judgment of the circuit court is affirmed. This case is remanded to the trial court,

pursuant to applicable law, for enforcement of that court‟s judgment and for the collection of

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costs assessed below. The costs of the appeal are assessed to the appellants, Matthew S. M.

and Will and Bobbi DuBoise.

_________________________________

JOHN W. MCCLARTY, JUDGE

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