In June 2010, the Mother of Alysia asked a woman named Charlene to care for the child. A few days later, and without the Mother’s permission or knowledge, Charlene left Alysia with another couple, the Mitchells so Alysia could attend Vacation Bible School at their church while Charlene was working. This arrangement was made official with a notarized “power of attorney authorization of temporary guardianship” that Mother signed on June 18, 2010 at a meeting with the Department of Children’s Services (“DCS”). This gave the Mitchells temporary guardianship, which was to last until January 1, 2011. DCS drug tested the Mother that same day, and Mother failed for marijuana. Consequently, a non-custodial parenting plan was entered, which stated that Alysia would not live with the Mother and required the Mother to maintain stable housing and earn legal income before Alysia could be returned to her.
After VBS ended, Charlene and the Mitchells decided it would be best for Alysia to stay with the Mitchells. Charlene informed the Mother of this decision two days later, via text message.
On August 26, 2010, the Mitchells filed a petition for dependency and neglect, requesting temporary custody of Alysia and requesting full custody of Alysia after the dispositional hearing, with steps in place for Mother to reobtain custody. On January 21, 2011, after three hearings on this matter, the juvenile court found Alysia to be a dependent and neglected child, awarding custody and full decision-making authority to the Mitchells. This Order also removed Mother’s superior parental rights and provided for limited, supervised visitation and phone calls. The Court found that dependency and neglect was proven by clear and convincing evidence pursuant to Tenn. Code Ann. §37-1-102(b)(12)(F) and (G). Specifically, the Court found that the evidence supporting this finding included the Mother’s constant lying, testimony that Alysia was present when the Mother smoked marijuana, that the Mother posted immoral photographs on her MySpace profile, and that the Mother “totally abandoned” Alysia by leaving her with Charlene and not visiting.
Mother appealed this ruling to the Circuit Court.
Following a new hearing on these matters, the Circuit Court made the following findings:
Absent extraordinary circumstances, parents are not entitled to superior rights when seeking to modify a valid order placing custody with a non-parent, even when that order resulted from the parent’s voluntary relinquishment of custody to the non-parent. Despite this rule, we have recognized four circumstances in which a natural parent continues to enjoy a presumption of superior rights to custody. . . . [N]umber 4 is when the natural parent cedes only temporary and informal custody to the non-parents. And in this particular case, in June of last year, it appears that [Mother] had some serious problems, and she gave up temporary custody, and gave informal custody to non-parents.
There are definitions for dependent/neglect. . . . (F) says, [a child] 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. And (G) is who is suffering from abuse or neglect.
Now abuse is defined . . . by statute, and neglect isn’t. Neglect is not specifically defined, but there are cases that would indicate neglect where children are in serious danger of being injured. So, we fall back on immorality or depravity. . . . [W]e have a lot of cases that involve immoral conduct. But the Court of Appeals has instructed us that unless that has some effect on the child, that’s not a basis for awarding custody to the other parent. [T]here has been no showing of any connection with any problem with the child.
Mother realized she couldn’t take care of the child for a while and sought help. She didn’t take care of her problems right away, and still has problems. But I don’t think that falls under the category of dependent/neglect which would remove her superior rights as a parent under these particular circumstances. . . . So, I think re-unification is appropriate, but there still has to be some work to make that happen.
The Mitchells appealed this decision to the Court of Appeals.
Pursuant to Tenn. Code Ann. §37-1-129(c), dependency and neglect must be proven by clear and convincing evidence, that is, evidence that “establishes that the truth of the facts asserted is highly probable, and eliminates any serious or substantial doubt about the correctness of the conclusions drawn from the evidence.
The Court of Appeals noted that there was no clear and convincing evidence that Alysia suffered direct or indirect abuse or neglect by Mother. Accordingly, the Court of Appeals found that Tenn. Code Ann. §37-1-102(b)(12)(G) is inapplicable to this case.
Much of the evidence at trial focused on the Mother’s alleged immorality. The Mitchells zealously gathered and presented past postings from Mother’s social networking pages such as photos of her in various states of undress next to references of “private parties” and bringing other “hot chicks.” The Mitchells suggested that the Mother might be involved in prostitution. However, the Mother testified that she never worked topless or in the sex industry, or in any form of prostitution, that she no longer organized parties, and that she never organized parties involving sex. More importantly, the record contains no evidence that Alysia had seen or knew about Mother’s past internet postings. We cannot simply assume that she will be exposed to them in the future, nor can we predict the effect, if any, such exposure would have on her morals.
The Mitchells presented ample evidence that, in the past, Mother jumped from house to house and from job to job. However, at the time of the Circuit Court hearing, the Mother had been employed for five weeks, was working two jobs, had purchased a car, and had acquired better, more stable housing. Furthermore, Alysia’s grandfather testified that if Alysia were back in the Mother’s care, he and his wife would support Mother “one hundred percent financially.”
Finally, since Mother’s initial failed drug screen with DCS, she had passed random drug screens, attended weekly recovery meetings, had been working with a sponsor and was working toward becoming a sponsor herself.
The Court of Appeals upheld the Circuit Court’s ruling.
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