In Re Noah D. and Kevin D. ( 2012 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs September 30, 2011
IN RE NOAH D. AND KEVIN D.
Appeal from the Circuit Court for Pickett County
No. 2010CV13 John J. Maddux, Jr., Judge
No. M2011-01087-COA-R3-PT - Filed January 20, 2012
The trial court terminated the parental rights of the mother of two children on the grounds
of abandonment by failure to establish a suitable home, persistence of conditions, and severe
child abuse. Mother appeals, contending that the evidence does not clearly and convincingly
establish the grounds of termination. We affirm the termination of the mother’s parental
rights on the grounds found by the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
R ICHARD H. D INKINS, J., delivered the opinion of the court, in which F RANK G. C LEMENT,
J R. and A NDY D. B ENNETT, JJ., joined.
James Reed Brown, Byrdstown, Tennessee, for the Appellant, Jessica S.
Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;
and Lindsey O. Appiah, Assistant Attorney General, for the Appellee, State of Tennessee.
OPINION
The Department of Children’s Services (“the Department”) instituted a proceeding on
August 28, 2009, in the Juvenile Court for Pickett County to have the two children of Jessica
S. and Steven D., Noah D., born May 6, 2008, and Kevin D., born June 22, 2009, declared
to be dependent and neglected and placed in the Department’s custody. The children came
to the attention of the Department on August 21 as a result of a referral that Kevin was
neglected nutritionally. A Protective Custody Order was entered placing both children in the
temporary custody of the Department and a preliminary hearing was held on September 3.
Following the hearing an order was entered continuing the children’s placement with the
Department pending an adjudicatory hearing, set for October 30. After several continuances,
the hearing was held on May 7, 2010, and an order entered holding the children to be
dependent and neglected and finding Kevin to be the victim of severe child abuse. The
adjudication of the children to be dependent and neglected was appealed to the Pickett
County Circuit Court.1
On November 22, 2010, the Department filed a petition in Pickett County Circuit
Court seeking to terminate the parental rights of both parents on the grounds of abandonment
by failure to establish a suitable home, persistence of conditions, and severe child abuse.
Additional grounds of abandonment by incarcerated parent and substantial non-compliance
with permanency plan were alleged against Steven. Trial was held on March 31, 2011, and
on April 7 the court entered a Final Decree of Guardianship, sustaining the grounds for
termination as alleged, holding that termination of the parental rights of both parents was in
the best interest of the children, and terminating the parental rights of Jessica and Steven.
By separate order entered on April 7, the court considered Jessica and Steven’s de novo
appeal of the May 7, 2010 juvenile court order holding both children to be dependent and
neglected and placing them in the custody of the Department. The circuit court held that both
children were dependent and neglected and that Kevin was the victim of severe child abuse
perpetrated by Jessica and Steven, and ordered that the children remain in the custody of the
Department. Jessica appeals the orders, raising the following issues:
1. Whether the Appellant has abandoned her children by failure to
provide a suitable home.
2. Whether persistent conditions exist which prevent a return of the
children to the Appellant.
3. Whether the Appellant has committed severe child abuse.
Steven does not appeal.
STANDARD OF REVIEW
Parental termination proceedings are governed by statute and involve a two-step
process. See Tenn. Code Ann. § 36-1-113. First, a party seeking to terminate the parental
rights of a biological parent must prove at least one of the statutory grounds for termination.
Tenn. Code Ann. § 36-1-113(c)(1); In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). Secondly, the party must prove that
termination of the parental rights of the biological parent is in the child’s best interest. Tenn.
Code Ann. § 36-1-113(c)(2). Because of the fundamental nature of the parent’s rights, courts
1
Petitions to set support against the parents were also filed in Pickett County Juvenile Court by the
State of Tennessee, through the Assistant District Attorney General, on January 28, 2010. The record on
appeal does not show the disposition of those petitions.
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require a higher standard of proof in deciding termination cases. Santosky v. Kramer, 455
U.S. 745, 769; Matter of M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998). Thus,
both the grounds for termination and the best interest inquiry must be established by clear and
convincing evidence. Tenn. Code Ann. § 36-3-113(c)(1); In re Valentine, 79 S.W.3d at 546.
Clear and convincing evidence “establishes that the truth of the facts asserted is highly
probable . . . and eliminates any serious or substantial doubt about correctness of the
conclusions drawn from the evidence.” In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App.
2004). Such evidence “produces in a fact-finder’s mind a firm belief or conviction regarding
the truth of the facts sought to be established.” Id. at 653.
This Court never takes the issue of terminating parental rights lightly, due to the grave
consequences that accompany such decisions. M.L.B. v. S.L.J., 519 U.S. 102, 119 (1996)
(quoting Santosky, 455 U.S. 745, 787 (1982) (Rehnquist, J., dissenting)) (“[f]ew
consequences of judicial action are so grave as the severance of natural family ties.”). In
accordance with Tenn. R. App. P. 13(d), this Court reviews the trial court’s findings of fact
de novo with a presumption of correctness unless the evidence preponderates otherwise. In
cases of parental termination, we determine whether the facts, either as found by the trial
court, or as supported by the preponderance of the evidence, clearly and convincingly
establish the elements necessary to terminate parental rights. See Jones v. Garrett, 92
S.W.3d 835, 838 (Tenn. 2002); In re Tiffany B., 228 S.W.3d 148, 156 (Tenn. Ct. App. 2007).
Whether a ground for termination has been proven by clear and convincing evidence is a
question of law, which we review de novo, with no presumption of correctness. In re S.H.,
No. M2007-01718-COA-R3-PT, 2008 WL 1901118, at *4 (Tenn. Ct. App. Apr. 30, 2008)
(citing In re Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn. 2007); In re Valentine, 79
S.W.3d at 548)).
DISCUSSION
I. Abandonment by failure to provide a suitable home
Tenn. Code Ann. § 36-1-113(g)(1) provides that abandonment, as defined at § 36-1-
102, is a ground to terminate parental rights; among the definitions of “abandonment” is §
36-1-102(1)(A)(ii), which states:
(ii) The child has been removed from the home of the parent(s) or guardian(s)
as a result of a petition being filed in the juvenile court in which the child was
found to be a dependent and neglected child, as defined in § 37-1-102, and the
child was placed in the custody of the department . . . that the juvenile court
found . . . that the department . . . made reasonable efforts to prevent removal
of the child . . . and for a period of four months following the removal, the
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department or agency has made reasonable efforts to assist the parent(s) or
guardian(s) to establish a suitable home for the child, but that the parent(s) or
guardian(s) have made no reasonable efforts to provide a suitable home and
have demonstrated a lack of concern for the child to such a degree that it
appears unlikely that they will be able to provide a suitable home for the child
at an early date...
Tenn. Code Ann. § 36-1-102(1)(A)(ii).
In the order terminating Jessica’s parental rights, the court found that, following
removal of the children, the efforts expended by the Department included:
. . . making the children available for visitation, providing the parents with a
written calendar of visitation dates, child and family team meeting dates and
parenting sessions, arranging and paying an interpreter for the deaf to be
present for parenting education, child and family team meetings and court
hearings, coordinating vocational rehabilitation services for the father,
coordinating and paying for a psychological evaluation for the mother,
attempting to arrange a psychological evaluation for the father, providing
parenting education and coordinating with TEIS and HUGS to make sure the
children were getting services from both agencies.
The court also found that the parents’ lack of reasonable efforts “include not actively
participating in the parenting education and not addressing the severe neglect they
perpetrated against their children, resulting in both children having been diagnosed as failure
to thrive.” Jessica contends that, if we find the department’s efforts to be reasonable, then
the fact that she participated in those programs “can only mean that she made reasonable
efforts.” We disagree with her interpretation of the statute as well as its application to the
facts of this case.
In In re Giorgianna H., 205 S.W.3d 508 (Tenn. Ct. App. 2006), this Court explained
the standard to be applied in assessing the efforts of the Department in providing assistance
to families facing challenges similar to those presented here:
The reasonableness of the Department’s efforts depends upon the
circumstances of the particular case. The factors that courts use to determine
the reasonableness of the Department’s efforts include: (1) the reasons for
separating the parent from his or her children, (2) the parent’s physical and
mental abilities, (3) the resources available to the parent, (4) the parent’s
efforts to remedy the conditions that required removal of the children, (5) the
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resources available to the Department, (6) the duration and extent of the
parent’s remedial efforts, and (7) the closeness of the fit between the
conditions that led to the initial removal of the children, the requirements of
the permanency plan, and the Department’s efforts.
In re Giorgianna H., 205 S.W.3d at 519 (citations and footnotes omitted). The parents’
responsibility, separate from the Department’s, was described as follows:
When reunification of the family is a goal, the parents share responsibility for
addressing these conditions as well. Thus, parents desiring the return of their
children must also make reasonable and appropriate efforts to rehabilitate
themselves and to remedy the conditions that required the Department to
remove their children from their custody.
Id. (Citing State Dep't of Children's Servs. v. B.B.M., 2004 WL 2607769, at *7; In re
C.M.M., 2004 WL 438326, at *7; In re R.C.V., No. M2001–02102–COA–R3–JV, 2002 WL
31730899, at *12 (Tenn.Ct.App. Nov.18, 2002) (No Tenn. R.App. P. 11 application filed)).
In In re A.D.A., 84 S.W.3d 592 (Tenn. Ct. App. 2002), this court considered a trial
court’s finding of abandonment under Tenn. Code Ann. § 36-1-102(1)(A)(ii) on the part of
a mother who struggled with a cocaine addiction. Instructive in the court’s application of the
statute was the following language:
We agree with the testimony presented by the State that a suitable home
requires more than a physical space. A.D.A. is a child with permanent injuries
who requires constant care. For him, a suitable home requires the presence of
a care giver who can supply the care and attention he needs.
In re A.D.A., 84 S.W.3d at 599.
Linda Barnes, a home visitor employed by the HUGS Program of the Tennessee
Department of Health,2 testified that she had been working with Jessica and Steven since
May 12, 2008, one week after the birth of their first child, Noah, and that she made twenty-
2
As detailed in a trial exhibit, the HUGS program is a home visiting program operated through the
county health department. The home visitor provides information and education on: care of the newborn and
new mother; how the newborn will grow and develop; feeding, including help with formula and breast
feeding problems and when to start solid foods; physical examinations; and activities to help with
developmental growth.
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seven home visits at which she taught both Jessica and Steven the importance of proper
feeding and nutrition, including how to properly mix formula in bottles.3
The children were removed from the custody of the parents and placed with the
Department as a result of the dependent and neglect petition filed on August 28, 2009, two
months after the birth of the second child, Kevin. Dr. Matthew King testified that he first
came into contact with Kevin on August 7 and admitted him to the hospital on August 21 in
order to monitor his feeding habits and weight due to continuing concerns about Kevin’s
weight loss and apparent malnutrition. Sara Tungate, Family Service Worker with the
Department, testified that Kevin was in the following condition at the time she was assigned
the case:
3
Ms. Barnes testified with respect to the visits beginning in 2008, in pertinent part, as follows:
Q. What sort of things did you do for them in addition to what you’ve already testified
to about demonstrating and making sure they understood how to properly mix
formula in bottles?
A. Normally the way our curriculum works when the baby turns four months old is
when we start doing our developmental assessments. I try to show the moms and
dads, the parents, what we do; I will demonstrate it, and also those curriculums have
pictures. Like if I am wanting to show them how to start working with motor skills
with the baby, say they are four months old I am going to put them on the floor, I
want to watch them start to hold their head up so long. And I try to encourage the
parents we are doing this for a reason, this is how we are teaching this baby to learn
its skills. We do this each month.
***
Q. What about [Jessica], did you have adequate time with her to teach her how to
properly prepare the formula and how frequently to feed the baby?
A. Right. We went over that quite often because of the baby being little, and not over-
feeding. I believe he had to have one or two formula changes. A lot of times with
the little ones things don’t agree. We went over that, you know, just feed a couple
of ounces at a time, and make sure you have to burp them, maybe give them a little
bit more then, and not just fix no great big six or eight ounce bottle and give them
the whole thing. So we went over that throughly on the feedings.
Q. When you went in the home did you actually wash and sterilize bottles?
A. We went over everything in their kitchen, yes.
***
Q. Did you do your best to follow the set schedule and time and notify the [Jessica and
Steven] so that you could provide services to Kevin as well?
A. Yes. I feel like I did my best with the children, and also for Jessica when she was
prenatal. And even after she had Noah we worked together trying to get her on
family planning, and take her to the Health Department. I worked with the family
as close and best I could.
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He was extremely malnourished. His arms were tiny. His stomach was
distended. His face was almost emaciated. He just laid; he was lethargic a lot
of the times when I first saw him.
Ms. Tungate testified at length regarding interactions and team meetings she held with
Jessica and Steven after the children were removed, and particularly her observation of the
visitations Jessica and Steven had with Noah and Kevin. While much of her testimony
related to Steven, Ms. Tungate related incidents of Jessica bringing inappropriate snacks for
the children to the visitation sessions; allowing the children to be in the presence of her
mother’s paramour, a registered sex offender; allowing Steven to engage in inappropriate
horseplay with Noah; failing to timely attend to the children’s needs for a change of diapers;
and her unstable living arrangements. With specific reference to Jessica, Ms. Tungate
testified:
Q. Tell me about the lack of reasonable efforts on behalf of the parents,
and again we are talking about that first four month period only after
the children were placed in foster care.
A. . . . Both [Steven and Jessica] had had housing at the time that DCS
was involved, but during those first four months they had left housing
and moved to a different facility; so there was unstable housing during
that time as well. There was a lot of domestic issues.
Q. Elaborate what you mean. Between who?
A. Between [Steven and Jessica].
Q. What do you mean by domestic issues?
A. [Jessica] had called the police because of a verbal and physical
altercation that had occurred at the home, in which ultimately led to
eviction from where they were staying.
Q. Did either parent during that first four month period acknowledge that
their actions had led to Kevin’s failure to thrive and his near death?
A. Yes. In the child and family team meeting both parents admitted to not
feeding Kevin when they knew they were supposed to.
Q. Did they address that issue during the first four month period beyond
just admitting to it?
A. No. There was never responsibility taken for their action of not
feeding Kevin.
Tenn. Code Ann. § 36-1-102(1)(A)(ii) clearly contemplates that the efforts to be
expended by the Department and those to be expended by the parents, while directed toward
the same goal, are independent of each other. The evidence shows that the efforts of the
Department in this case were directed toward getting both parents to address basic issues
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relating to their lack of knowledge and competence in parenting. In contrast, the efforts
required of Jessica went beyond mere attendance at visitation and attending parenting
sessions and included demonstrating, on a consistent and continual basis, her competence as
a parent. Noah and Kevin each suffered from a lack of care and appropriate parenting in the
early days, months and years of their lives and, as a consequence, the understanding and
application of the instruction and assistance Jessica received was the measure by which her
efforts would be gauged. Although the record does not show that Jessica’s situation was as
extreme as the mother in In re A.D.A., the principle of the case holds–a suitable home for
Noah and Kevin require someone who can supply the attention and care they need on a
consistent basis. The record supports the court’s determination that Jessica failed to establish
a suitable home for the children.
II. Persistence of Conditions
Tenn. Code Ann. § 36-1-113(g)(3)4 allows for the termination of parental rights where
a child has been removed from the parent’s custody for a period of six months and the
conditions which led to the child’s removal persist. With respect to the persistence of
conditions, the trial court held:
41. The conditions that led to the removal of the children from the home of
[Jessica] and [Steven] were the history of neglecting the children and knowing
failure to feed Kevin as instructed by the child’s doctor, resulting in serious
malnutrition.
42. The conditions that prevent the children’s return to the parents’ home are
the lack of stability in housing, failure to address the issues that caused the
4
Tenn. Code Ann. § 36-1-113(g)(3) provides:
(3) The child has been removed from the home of the parent or guardian by order of a court
for a period of six (6) months and:
(A) The conditions that led to the child's removal or other conditions that
in all reasonable probability would cause the child to be subjected to
further abuse or neglect and that, therefore, prevent the child's safe return
to the care of the parent(s) or guardian(s), still persist;
(B) There is little likelihood that these conditions will be remedied at an
early date so that the child can be safely returned to the parent(s) or
guardian(s) in the near future; and
(C) The continuation of the parent or guardian and child relationship
greatly diminishes the child's chances of early integration into a safe, stable
and permanent home[;]
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severe neglect of their infant child by not feeding him to the extent he was
significantly malnourished . . . .5
The evidence relative to each child’s condition, the nature of the parenting challenges
facing Jessica, and her inability to apply, on a consistent basis, the information she was
receiving in the parenting classes also supports the holding that the conditions which led to
the children’s removal persisted and prevented the safe return of the children.6 Significant
in this regard is the testimony of Ms. Tungate that a psychologist who examined Jessica
cautioned that his determination that she had the ability to learn parenting skills was not a
determination that she would “follow through with parenting a child.” Significant also is
the fact that, despite Jessica and Steven being provided parenting instruction shortly after
the birth of their first child, the filing of the dependent and neglect petition, which led to the
children’s removal, was prompted by concerns about their care of the second child.
5
The court made additional findings with respect to Steven relative to the ground of persistence of
conditions.
6
Ms. Tungate also testified as follows:
Q. What were the conditions that caused the children to be removed?
A. That Kevin was failure to thrive.
Q. Kevin was near death, wasn’t he?
A. Yes.
Q. That’s what this case is about - a child who almost died?
A. Yes.
Q. Due to the parents admitted failure to feed him properly?
A. Yes.
Q. Let’s talk about [Jessica] first. What are the conditions, in addition to the failure
to feed Kevin prior to his removal, what are the conditions that prevent the children
from being returned to her at this time?
A. At the time she currently does not have stable housing. She, in the past two months,
has lived at at least three different places. She currently does not have any legal
means of income to support her children.
Q. Anything else?
A. As far as demonstrated change there are concerns still that there is not a
responsibility that was taken of her behavior changes, admitting that she did not
feed Kevin.
Q. She made the admission but she has not taken responsibility for change; is that what
you are saying?
A. Yes.
Q. For that matter is she demonstrating through the food she is bringing to the
visitations that she has not made a change in her behavior to make sure that the
children receive proper nutrition?
A. Yes.
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Considering the entire evidence, persistence of conditions was clearly and convincingly
shown. See Matter of M.W.A., Jr., 980 S.W.2d 620 (Tenn. Ct. App. 1998) (persistence of
conditions shown where, inter alia, parents failed to show that their parenting skills had
improved.)
III. Severe Child Abuse
As the third ground of termination of parental rights, the court held that Jessica and
Steven committed severe child abuse against Kevin in “their knowing failure to adequately
feed their infant resulting in serious malnutrition and failure to thrive.” Jessica contends that
the Department did not show a knowing failure to feed, particularly in light of the fact that
she regularly took Kevin to his doctor’s appointments and that “neither of Kevin’s doctors
told [Jessica] to feed Kevin as much as he was fed when he went to the hospital.”7
In support of its holding, the court stated the following:
The finding of severe child abuse of [Kevin] perpetrated by [Steven] and
[Jessica] is based upon the following findings of fact:
A. The parents neglected to feed the child, [Kevin], in the manner in
which they had been instructed by the child’s doctors.
B. The nutritional neglect resulted in the child being hospitalized for
failure to thrive and eventually in a diagnosis of malnourishment.
C. The Court finds Dr. Matthew King’s testimony during deposition to be
credible and reliable. He specifically stated the following:
a. [Kevin] suffered from protein and calorie malnutrition because
the child was not receiving enough protein or calories.
b. That the parents had been instructed on how to feed the child
and showed an understanding of those instructions. The mother
was able to recall the instructions from a previous visit and
correctly related them to Dr. King, but the child had lost weight.
c. That the diagnosis of malnutrition is life threatening.
d. That all other potential causes for the diagnosis were ruled out.
7
Jessica’s brief fails to include citations to the record in support of her argument, as required by
Tenn. R. App. P. 27(a)(7)(A). Notwithstanding this omission, we have reviewed the record in its entirety
to address all issues raised. See Lykins v. Key Bank USA, NA, et al., No. E2005-01572-COA-R3-CV, 2006
WL 2482963, at *5 (Tenn. Ct. App. Aug. 29, 2006) (“Courts have routinely held that the failure to make
appropriate references to the record and to cite relevant authority in the argument section of the brief as
required by Rule 27(a)(7) constitutes a waiver of the issue. . . . This Court is under no duty to verify
unsupported allegations in a party’s brief. . . .”).
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e. The child immediately began to gain weight upon admission to
the hospital and has continued to do so.
f. That there were symptoms associated with the diagnosis that
would have been apparent to the caregivers.
g. That [Kevin] did suffer from, sustain, or was placed in
immediate danger of suffering from or sustaining a wound,
injury, disability, or physical or mental condition caused by
brutality, neglect, or other actions, or inactions, of his mother
and father.
h. That there is the potential for long term effects for a child going
without proper nourishment which include diminished adult
height, delayed development and potentially decrease in mental
capacity as an adult.
i. That the actions and inactions of [Kevin]’s parents, [Steven]
and [Jessica], do constitute knowing exposure of the child to, or
the knowing failure to protect the child from abuse or neglect
that was likely to cause great bodily harm or death.
j. That there is a risk for children associated with these caretakers
of ongoing neglect, poor development, and potential future
harm to their adult ability to cope with their surroundings due
to mental...primarily mental capacity and if there was an
inability to attain full genetic potential for their intelligence, that
would limit them.
k. That he believed the parents, [Steven] and [Jessica],
purposefully did not feed their child, [Kevin] adequately.
Tenn. Code Ann. § 37-1-102(b)(23)(A)(i)8 defines “severe child abuse” 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;
(ii) “Serious bodily injury” shall have the same meaning given in § 39-15-402(d).
8
The court cited the statute defining “severe child abuse” as Tenn. Code Ann. § 37-1-102(21).
Tenn. Code Ann. § 37-1-102 has been amended numerous times; it was amended by Chapter 278, Public Acts
of 1989, to create subsections (a) and (b). Chapter 411, Public Acts of 2009, added subsections 16 and 17
to the definitions at § 37-1-102(b) and provided that the then existing subdivisions would be renumbered as
a result of the addition; consequently, the definition of “severe child abuse” is now codified at Tenn. Code
Ann. § 37-1-102(b)(23).
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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;
(C) The commission of any act towards the child prohibited by §§ 39-13-502--
39-13-504, 39-13-522, 39-15-302, 39-15-402, and 39-17-1005 or the knowing
failure to protect the child from the commission of any such act towards the
child; or
(D) Knowingly allowing a child to be present within a structure where the act
of creating methamphetamine, as that substance is identified in § 39-17-
408(d)(2), is occurring;
The factual findings of the court are fully supported by the testimony of Dr. King, whom the
court found to be “credible and reliable”9 and bring Jessica’s neglect of the children within
the plain wording of the statute. We affirm the court’s finding in this regard.
9
In pertinent part, Dr. King testified:
Q. If it continued, I believe you said it was life threatening; is that right?
A. Very life threatening. I can safely say he was the sickest child I had seen that
calendar year.
Q. Is there any potential for any long term effects for a child going without the proper
nourishment?
A. Yes, ma’am. Long term effects can include diminished adult height, and delayed
development, and potentially decrease in mental capacity as an adult.
Q. All serious conditions?
A. Yes.
***
Q. What are the risks to this child or other children, such as his brother, with the same
caretakers if the children are not protected from caretakers who have committed
what the department has alleged they have committed?
A. The risk would be ongoing neglect, poor development, and potential future harm to
their adult ability to cope with their surroundings due to mental . . . . primarily
mental; the physical loss of adult height shouldn’t affect them long term, but
certainly if there was an inability to attain full genetic potential for their
intelligence, that would limit them.
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CONCLUSION
For the foregoing reasons, the order of the Circuit Court is AFFIRMED.
Costs of this cause are assessed to Jessica S.
________________________________________
RICHARD H. DINKINS, JUDGE
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