FAMILY LAW:

STATE: IL

Cases for Analysis

The case below looks at whether a parent's conduct must be "knowing" in order to support a finding of parental abuse or neglect. It also considers the extent to which potentially mitigating circumstances, such as limited intelligence and a history of abuse, should be taken into account when determining if neglectful conduct, which in this case involves the failure to properly nourish prematurely born twins, is in fact "knowing."

TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. TIKINDRA G.

347 S.W.3d 188, 2011 Tenn. App. LEXIS 111 (2011) Appeal denied by In re Samaria S. and Samarion S., 2011 Tenn. LEXIS 701

(Tenn., July 14, 2011)

Roger A. PAGE, Judge.

. . .

FACTS AND PROCEEDINGS BELOW

On July 9, 2007, Respondent/Appellant Tikindra G. ("Mother"), twenty years old at the time, gave birth to twins, Samarion S. ("Boy Twin") and Samaria S. ("Girl Twin"). At the time, Mother already had two other children, ages one and two. Although Mother maintained an "on again and off again" relationship with the twins' father, Siarron S. ("Father"), Mother and Father were never married.

The twins were born four to six weeks prematurely, at about thirty-four weeks' gestation. Each weighed about four pounds at birth. Consequently, they spent their first two weeks in the Neonatal Intensive Care Unit ("NIC Unit") of the Jackson Madison County Hospital ("Hospital"). Initially, the newborn twins had difficulty feeding, but this problem largely resolved while they were in the Hospital. . . .

Mother was given extensive instruction on how to feed and care for them once she brought them home, including both written and verbal instructions by the NIC Unit. Mother indicated that she understood the instructions, and she signed an acknowledgement for the discharge nurse stating that she understood the care and feeding instructions.

The address Mother had given the Hospital was the address for Mother's grandmother at 2465 Steam Mill Ferry Road. Mother and her children were residing there temporarily, because the utilities in Mother's apartment had been cut off. On July 26, 2007, the day after Boy Twin was released, home health professionals came to the Steam Mill Ferry address to discuss with Mother the services that had been scheduled for her

p. 627 p. 628 premature infants. In the meeting, Mother signed a consent form for further home health services. The next day, on July 27, 2007, Mother brought the twins to their pediatrician for a checkup. The checkup indicated no problems with the twin babies at that time.

During the next week, the home health professionals came to the Steam Mill Ferry address to provide Mother and the premature infants with the scheduled in-home services. When they arrived, Mother's grandmother told them that Mother and the children were no longer living there and that the grandmother did not know Mother's whereabouts. Consequently, the scheduled home health services were not provided to Mother and the babies.

Unbeknownst to either Hospital personnel or the home health services personnel, Mother had moved with her four children into the home of her friend, Quintora "Quinn" Miller ("Ms. Miller"), at 907 Park Place Apartments in Jackson, Tennessee. Ms. Miller lived at the Park Place Apartment with her own three children. After moving in with Ms. Miller, Mother returned to work at her hourly wage job, working about six hours a day. While Mother was at work, she left the twins in the care of either Father or Ms. Miller.

During the almost-two-week period following the babies' initial checkup with their pediatrician, the twins' health plummeted. By August 9, 2007, Boy Twin's condition had become dire; while at home with Mother, he went into respiratory distress and his eyes rolled into the back of his head. After Mother called 911, Boy Twin was transported to the Hospital. When Boy Twin arrived at the Hospital, he was near death. His temperature was 86 degrees, and he had no subcutaneous fat, only skin hanging on his bones. CPR was administered, and the child was intubated and placed on a ventilator in the pediatric intensive care unit ("PIC Unit"). He received blood transfusions on both August 9 and 10, 2007. Boy Twin was diagnosed with having had a life-threatening event and malnutrition/failure to thrive. Mother apparently did little or no visiting Boy Twin while he was hospitalized.

On August 14, 2007, while Boy Twin was still in the hospital, Petitioner/Appellee State of Tennessee, Department of Children's Services ("DCS"), received a referral on Girl Twin. Child Protective Services ("CPS") investigator Doretha Brice ("Brice") was assigned to the case. Initially, Brice was unable to locate Girl Twin because Mother was not visiting Boy Twin in the hospital. . . . On the morning of August 16, 2007, Brice finally located Mother and Girl Twin at the home of Ms. Miller. When Brice explained to Mother that the home health agency had been unable to locate her to assess Girl Twin, Mother admitted to Brice that she had not given the home health agency her new address.

While Boy Twin was being treated at the Hospital, Girl Twin's condition had continued to decline. Later during the same day that Brice visited

Mother, while Girl Twin was in Father's care, Girl Twin was taken to the Hospital. Upon admission, her condition was nearly the same as Boy Twin; she was severely malnourished and dehydrated, with so little subcutaneous fat that her skin was hanging on her bones. . . .

On August 23, 2007, DCS filed a petition in the Juvenile Court of Madison County, asking the court to find that the twins were dependent and neglected and to enter an order placing them in State protective custody. The next day, the juvenile court entered an order granting DCS's request. In the order, the juvenile court noted that both babies had been hospitalized for malnutrition and dehydration, that the family's utilities had been cut off and Mother had been living with a family friend, that the family did not participate in home health services, and that the parents had no reliable means of transportation. . . .

On November 20, 2007, the juvenile court entered an order noting that Mother had stipulated that the twins were dependent and neglected. The juvenile court subsequently ordered Mother to undergo a psychological evaluation ("CCP evaluation"). In the CCP evaluation, Mother indicated that she came from a broken home; her mother neglected her and her father was in and out of jail for selling and using marijuana. After Mother reached adulthood, she entered into a relationship with Father. Their relationship was abusive. . . .

The results of Mother's CCP psychological testing revealed that she has Low Average to Borderline Intellectual Functioning. Although she is a high school graduate, Mother's reading comprehension is only at a third grade level. Her verbal IQ was estimated at 75, which is in the 5th percentile, and her performance IQ was estimated at 80, in the 9th percentile. The evaluation did not find a formal thought disorder or psychosis. . . . The evaluation indicated that Mother at times does not fully grasp or appreciate what is being explained to her, but is reluctant to admit this. The evaluator determined that Mother had "some insight" as to the special needs Boy Twin would have as a result of his severe neglect, because she recognized that Boy Twin would need a variety of professional appointments throughout his childhood.

On November 26, 2008, the babies' guardian ad litem filed a petition in the juvenile court to terminate the parental rights of both Mother and Father based on severe child abuse, abandonment, failure to comply with the provisions of the DCS permanency plans, and persistent conditions.

Ultimately, after several hearings, on August 11, 2009, the juvenile court entered a final order finding that Boy Twin was the victim of severe child abuse, but that Girl Twin was not a victim of severe child abuse. . . .

On December 3, 2009, the circuit court below conducted a de novo hearing on Mother's appeal from the juvenile court's dependency and neglect findings. Mother again stipulated that both children were dependent and

neglected, but challenged the finding of severe child abuse. Mother, DCS, and the GAL all stipulated that the circuit court should consider the issue of severe child abuse as it related to both Boy Twin and Girl Twin.

On appeal, Mother stipulates that both of her twin babies were dependent and neglected. She argues that the circuit court erred in concluding that clear and convincing evidence established that both twins were subjected to "severe child abuse." Specifically, she argues that, to support a finding of severe child abuse, the evidence must show clearly and convincingly that her acts or failure to act were "knowing." Mother contends that the evidence is insufficient to show that her conduct was "knowing" in light of her limited intellect and psychological profile, as reflected in her CCP evaluation and other evidence. Even assuming that she possesses the necessary intellect to appreciate the risks involved in her negligent conduct, Mother claims that the evidence did not clearly and convincingly show that she deliberately ignored the situation. She claims that her failure to update her address with the home health agency or to take her children to their checkups with the pediatrician does not rise to the level of severe abuse.

In response, DCS maintains that the evidence before the circuit court showed clearly and convincingly that Mother's abuse or neglect of the twins was "knowing." In addition, DCS claims that the definition of severe child abuse . . . does not require that the parent's conduct be "knowing"; rather, it is sufficient to show that the abuse or neglect of the child "will reasonably be expected to produce" the severe consequences to the child noted in that subsection. . . .

ANALYSIS

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. . . . While this right is fundamental and superior to the claims of other persons, it is not absolute. . . . It continues without interruption only so long as the parent has not relinquished it, abandoned it, or engaged in conduct requiring its limitation or termination. . . .

In this case, Mother stipulated that her babies were dependent and neglected, and the issue on appeal is whether the circuit court erred in making a further finding that they were subjected to "severe child abuse". . . .

[I]f there is a finding of severe child abuse, under the statutes, DCS is relieved of the obligation to use reasonable efforts to reunify the child with the parent, it is more difficult for the parent to regain custody, and one ground for termination of the parent's parental rights is effectively established.

Mother argues that the trial court erred in finding severe child abuse, because the evidence does not show that her neglect of her premature infants was "knowing," as required under the statutory definition. DCS argues that the provision of the statutory definition of "severe child abuse" at issue does not require DCS to prove that Mother's neglect was "knowing." We consider first whether "knowing" conduct or neglect is an element of the applicable provision of the statutory definition of severe child abuse. We then address whether clear and convincing evidence establishes that Mother's neglect in this case was "knowing." . . .

In the Tennessee statute, the definition of severe child abuse in subsection (B) explicitly focuses on the "injurious consequences" of the perpetrator's "specific" neglect, even going so far as to expressly require "the opinion of qualified experts" on those expected consequences. . . .

From our review, subsection (B) appears intended to address precisely the circumstance in this case, namely, child victims who are especially fragile and vulnerable and less able to survive the risk inherent in reunification. The failure to properly nourish a fourteen-year-old child for a two-week period, while abusive, would not have the catastrophic consequences of the failure to nourish a premature infant who is only days old. Subsection (B) appears intended to be broad enough to include a perpetrator's conduct toward an especially vulnerable child victim that, regardless of the perpetrator's knowledge or intent, creates "an unacceptably high risk to the health, safety and welfare of the child." . . .

PROOF OF KNOWING NEGLECT

[Note: In contrast to the above discussion regarding whether proof of "severe child abuse" requires evidence that the parent's conduct was "knowing," the applicable statute was clear that a finding of neglect requires that the conduct be knowing.]

Mother also argues on appeal that there is not clear and convincing proof in the record that her neglect of the twin babies was knowing. Mother argues that the circuit court erred in failing to consider the evidence on her intellect, specifically, the CCP test results that showed a verbal IQ of 75, in the 5th percentile, and a performance IQ of 80, in the 9th percentile, and an overall classification as Borderline Intellectual Functioning. Mother also notes the observations in the CCP evaluation that Mother often does not fully grasp what people are telling her, but is reluctant to say so because she wants to project the image of an intelligent, capable person who does not need assistance. As corroboration, Mother's counsel cites instances during Mother's trial testimony in which the questioner based questions on mistaken assumptions and Mother simply answered the questions without correcting the erroneous assumption.

Mother's counsel also argues that, even if she is found to have the intellectual ability to understand the directions given her on the care of her premature babies, Mother's testimony showed that she simply did not appreciate the risk to her children. Specifically, she did not recognize the importance of staying in contact with the home health care agency and taking the babies to follow-up appointments with the pediatrician, and did not realize the risks involved in failing to feed the infants every two hours. . . .

According appropriate deference to the circuit court's implicit determinations on the witnesses' credibility, we find ample evidence in the record to support the circuit court's finding that Mother's neglect was "knowing." The testimony at trial showed that the Hospital's NIC Unit personnel took great care in educating Mother about the needs of her premature infants and how to care for them. Mother acknowledged that she was trained at the hospital as to the proper care and feeding of the twins. She also conceded that a discharge nurse presented her with a form indicating that she was given proper instructions, and that she understood those instructions. Mother received one home health care visit before she moved from her grandmother's house, and also had one visit with the babies' pediatrician. Certainly Mother received plenty of instruction and training on caring for the infants. Most importantly, Mother acknowledged in her testimony that she understood the instructions, and even testified that she in fact fed the babies every two hours. . . .

Of course, Mother's assertion, that both of her premature babies were in fact fed in accordance with the instructions she had been given, was patently untrue. After a favorable checkup with the pediatrician on July 27, 2007, less than two weeks later, on August 9, 2007, Boy Twin was rushed to the Hospital "pretty much dead." The records and the undisputed testimony describe an infant whose appearance was shocking, with no fat whatsoever under his skin, skin hanging over his bones, and in respiratory distress. Clearly, Boy Twin had been consistently starved during the interval between July 27 and August 9. By the time Girl Twin was rushed to the Hospital, the evidence shows that she was in a similar state, with essentially no subcutaneous fat and skin hanging on her bones. The fact that Mother would assert falsely in her testimony that both babies had been fed appropriately and that Boy Twin looked like he was "doing fine" until he went into respiratory distress is also indicative of her "state of awareness." Moreover, after Boy Twin was hospitalized, Mother must have been aware of his dire condition, and nevertheless apparently continued to starve Girl Twin until she too was hospitalized. We find clear and convincing evidence in the record to support the circuit court's conclusion that Mother's neglect was "knowing. . . ."

QUESTIONS

1.What did the court conclude regarding whether parental conduct must be "knowing" in order to be considered "severe child abuse"?

2.Why did the mother argue that her failure to adequately nourish her newborn twins was not knowing?

3.Why did the court disagree with her position? On what did it base its conclusion that she acted knowingly?

4.Do you think the result would have been different if the mother had not been instructed in how to care for her newborns?