By Connie Reguli

2017 – September 29

In Re Gabriella D.  E2016-000139-SC-R11-PT, Filed 9/27/17

Tennessee Supreme Court reversed the termination of a mother’s parental rights finding that Mother had been “able to make the necessary adjustments.”  This opinion written by Justice Cornelia Clark provides new light for parents suffering in the child welfare system.

In Gabriella, the family epitomized nearly every destructive behavior one could imagine.  Mother has a child born with methodone in its system and another one suffered withdrawal after birth; her narcotic pill counts was off; she repeatedly returned to a relationship that was destructive; her resident boyfriend smoked marijuana; her child suffered thrush from dirty bottles; law enforcement found drug paraphernalia in her home; one child suffered from malnutrition; and was child was six months old and was so developmentally delayed that he appeared to be a newborn.  In addition, the Mother had her parental rights terminated on two other children.

In March 2012, three children were removed from Mother and placed in foster care.   The Mother was cooperative with the agency and gained unsupervised visitation in September 2012.  The foster Mother complained that Gabriella did not want to visit with her Mother and further complained that the child’s behaviors regressed after visits.

The Mother obtained appropriate housing when her Mother (Maternal Grandmother) and Mother’s brother (Maternal Uncle) moved to Tennessee to assist Mother.  The uncle moved in with the Mother to help with the children.  A trial home visit was to begin on July 31, 2013.

The foster parents went to Circuit Court and filed a petition to terminate the parental rights of the Mother on the same day the children were to be placed back with Mother on this trial placement (July 31, 2013).  In addition, the Mother was arrested for felony child abuse on September 4, 2013 on her way to juvenile court for a hearing, due to the severe malnutrition of her child in March 2012.  Therefore, DCS did not place the children back with the Mother.

In October 2013, the Juvenile Court judge found that the foster parents had voided their contract with DCS by filing a petition for termination of parental rights and DCS left the child in an inappropriate placement (the fosters) for too long.  The judge found that the children should have been placed with the Mother July 31, 2013 as planned.

The Mother plead guilty to child neglect (a misdemeanor) and was sentenced to a year of probation which included included drug screens.  Mother had a positive drug screen for hydrocodone while on probation.

The foster parents had been dissatisfied with the goal of reunification from the beginning.  They made repeated complaints about the Mother and claimed that the children had thrived in their care.  They claimed that the mutual affection between the fosters and the children had developed and deepened.

Before the TPR trial started Mother broke a bone in her foot and had dental surgery.  On both occasions, she was prescribed narcotic pain medication and failed in inform the treating professionals that she had a history of narcotic drug abuse.

At the trial, Mother offered the testimony of two expert witnesses.  Dr. Alice Greaves who did a parenting assessment on the Mother and Dr. Irene Ozbek, who performed a bonding study on the Mother by making direct observations of her interactions with her children.   Dr. Gleaves testified that Mother’s improvements were commendable.  Dr. Ozbek testified that the Mother handled the children well and used appropriate discipline.

The Supreme Court opinion goes through a detailed analysis of the factors to be considered in the best interest of the child.  Tenn. Code Ann. 36-1-113(i)(1).

In summary, the Sup Ct found that “almost all of the statutory factor weigh heavily against finding that terminating Mother’s parental rights is in the best interests of the children.  “THE COURT OF APPEALS ERRONEOUSLY PLACED OUTCOME-DETERMINATIVE WEIGHT ON STATUTORY FACTOR SIX, AND MORE SPECIFICALLY, ON THE PROOF REGARDING MOTHER’S SEVERE NEGLECT OF THE CHILDREN IN THE PAST.”

The Sup Ct acknowledged that the Mother may relapse in the future, “yet, the risk that Mother may relapse is a possibility only and does not amount to clear and convincing evidence that termination is in the best interests of these children.”    The Sup Ct said, “Our decision instead results from an objective and comprehensive review of the record to determine whether the facts presented satisfy the constitutionally mandated heightened standard of proof. This heightened standard is designed specifically to reduce the risk of erroneous decisions depriving parents of their precious and fundamental rights to the care and custody of children.”

Is this a new day for parents?  Perhaps.

By Connie Reguli