               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                 June 30, 2015 Session

                                  IN RE: ISAIAH R.

                  Appeal from the Circuit Court for Cocke County
               No. 33594I, 33595I, 33596I  Ben W. Hooper, II, Judge


                No. E2015-00026-COA-R3-JV – Filed August 7, 2015


This appeal arises from a dispute over the placement of the minor child Isaiah R. (“the
Child”). The Tennessee Department of Children’s Services (“DCS”) removed the Child
from his parents’ custody and placed the Child in a foster home. Certain of the Child’s
paternal relatives (“Respondents,” collectively) intervened in an effort to obtain custody
of the Child and take him to California. The Circuit Court for Cocke County (“the Trial
Court”) adjudicated the Child dependent and neglected, dismissed DCS from the action,
and awarded legal and physical custody of the Child to the Child’s paternal great uncle.
DCS appealed to this Court. We hold that the Interstate Compact on the Placement of
Children (“the Compact”) applies in this case, that no exemptions to the Compact apply,
and that the Trial Court erred in transferring custody of the Child to his great uncle in
California without California’s approval. We further find that transferring the Child to
California is not a proper disposition for the Child given certain troubling facts in the
record. We reverse the judgment of the Trial Court.

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

D. MICHAEL SWINEY, J., delivered the opinion of the court, in which JOHN W.
MCCLARTY and FRANK G. CLEMENT, JR., JJ., joined.

Herbert H. Slatery, III, Attorney General and Reporter, Andrée S. Blumstein, Solicitor
General, Alexander S. Rieger, Assistant Attorney General, and, Paul Jordan Scott,
Assistant Attorney General, for the appellant, the Tennessee Department of Children’s
Services.
Charlotte Ann Leibrock, Candice K. Mendez, William M. Leibrock & James R.
Scroggins, and, Carter S. Moore, Guardian ad Litem, for the appellees, Daniel R., Gary
R., and Bradley R.1

                                                 OPINION

                                                Background

              The Child was born drug-exposed in November 2011. The Child’s father,
Bradley R. (“Father”), is incarcerated on a six-year sentence. The Child entered state
custody and came to live with Lisa H. (“Foster Mother”) after leaving the hospital. In
October 2012, DCS placed the Child with his great uncle, Daniel R. (“Great Uncle”) and
his wife Rebecca (“Great Aunt”) in California pursuant to the Compact. Because Great
Aunt previously had incurred a criminal conviction for DUI, approval for placement in
California with Great Uncle and Great Aunt required a waiver. Under the terms of the
approval, California authorities would monitor the home for at least six months. The
Great Uncle and Great Aunt were required to report any changes, such as further criminal
charges. When Great Uncle worked, Great Aunt provided for the Child’s day to day care.

              Certain troubling facts about the Great Uncle’s and Great Aunt’s home
environment in California came to light causing California to withdraw its approval of
the Child’s placement with Great Uncle and Great Aunt. Following the initial approval
by California of the placement, Great Aunt incurred a second DUI conviction. Great
Aunt later completed alcohol treatment and, by her account, stopped drinking. Great
Uncle and Great Aunt did not disclose this second DUI conviction to the California
officials. In addition, Great Aunt smokes marijuana, albeit allegedly by prescription.
Great Aunt would leave the Child in the care of other adults in the home, go for a walk,
and smoke the marijuana. Finally, there was an incident involving the authorities when
Great Aunt called 9-1-1 concerning a claimed domestic violence episode involving her
adult son. Great Uncle and Great Aunt, again, did not disclose this incident. Great Aunt
also admitted that she told authorities that her son, who had moved into the home, was
becoming more violent. When the family moved, a new home study was conducted by
California. California officials discovered Great Aunt’s second DUI conviction and the
domestic violence incident resulting in Great Aunt’s call to 9-1-1. California
subsequently withdrew approval for the Child’s placement in the home.

             After approximately six months in California, DCS brought the Child back
to Tennessee after California withdrew its approval for the Child’s placement with Great
Uncle and Great Aunt. The Child was returned to Foster Mother’s care. Foster Mother is

1
    The Child’s mother also is named in the action, but she has filed no brief on appeal.
                                                      -2-
a registered nurse who has made sure that the Child receives various types of care,
including speech therapy, behavioral therapy, and physical therapy as needed. As of
December 2014, the Child had lived with Foster Mother for 31 out of 37 months since his
birth.

               Father stipulated to the Child’s dependency and neglect, but urged that the
Trial Court grant custody of the Child to Great Uncle in California a second time. DCS
opposed this, arguing that to transfer custody back to Great Uncle in California without
California’s authorization would violate the Compact. After a hearing, the Trial Court
ruled that the Compact did not apply, that DCS was dismissed from the case, and that the
Child’s best interest would be served by awarding custody to Great Uncle. In its oral
remarks from the bench, the Trial Court based its decision primarily on the blood
relationship between the Child and his paternal extended family and a desire to foster that
relationship. DCS appealed to this Court.2

                                                 Discussion

              Although not stated exactly as such, DCS raises the following two issues on
appeal: 1) whether the Trial Court erred in concluding that the Compact does not apply in
this case; and, 2) whether the Trial Court erred in placing the Child with Great Uncle in
California even if the placement did not violate the Compact.

             Our review is de novo upon the record, accompanied by a presumption of
correctness of the findings of fact of the trial court, unless the preponderance of the
evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727
(Tenn. 2001). A trial court’s conclusions of law are subject to a de novo review with no
presumption of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58
S.W.3d 706, 710 (Tenn. 2001).

              We first address whether the Trial Court erred in concluding that the
Compact does not apply in this case. The Compact is codified at Tenn. Code Ann. § 37-
4-201 et seq, with its purposes stated as followed:

        It is the purpose and policy of the party states to cooperate with each other
        in the interstate placement of children to the end that:

2
  Curiously, the Trial Court, after entering its final order in this case, presented a second, more detailed
order, which is contained in the record. However, the Trial Court, in handwritten notes on the order,
states in this putative order that it is not to be entered as an order. Rather, the Trial Court explained that it
was misled into hastily signing the first order and wished to present a fuller, more detailed rationale for its
decision. The second “order” is indeed more detailed, but, as the Trial Court specifically stated that it
was not to be entered as an order, we will not treat it as such.
                                                      -3-
      (a) Each child requiring placement shall receive the maximum opportunity
      to be placed in a suitable environment and with persons or institutions
      having appropriate qualifications and facilities to provide a necessary and
      desirable degree and type of care.

      (b) The appropriate authorities in a state where a child is to be placed may
      have full opportunity to ascertain the circumstances of the proposed
      placement, thereby promoting full compliance with applicable requirements
      for the protection of the child.

      (c) The proper authorities of the state from which the placement is made
      may obtain the most complete information on the basis of which to evaluate
      a projected placement before it is made.

      (d) Appropriate jurisdictional arrangements for the care of children will be
      promoted.

Tenn. Code Ann. § 37-4-201 (2014).

             The Compact defines placement as follows:

      [T]he arrangement for the care of a child in a family free or boarding home
      or in a child-caring agency or institution but does not include any institution
      caring for the mentally ill, mentally defective or epileptic or any institution
      primarily educational in character, and any hospital or other medical facility
      ....


Tenn. Code Ann. § 37-4-201 (2014). Article VIII of the Compact provides that it shall
not apply to:

      (a) The sending or bringing of a child into a receiving state by the child’s
      parent, stepparent, grandparent, adult brother or sister, adult uncle or aunt,
      or the child’s guardian and leaving the child with any such relative or non-
      agency guardian in the receiving state.

Tenn. Code Ann. § 37-4-201 (2014).

             A “family free” home has been described as “a home where the child lives
without charge and receives the care which children usually receive from their parents as
                                            -4-
part of the process of upbringing.” J.D.S. v. Franks, 893 P.2d 732, 740 (Ariz. 1995)
(quotations omitted).

              In this case, the Trial Court sent the Child to live with relatives in
California. According to Respondents, this constituted a custody decision involving
relatives rather than a placement, and the Compact is not applicable. Alternatively,
Respondents argue that the parties in this case are exempt from the terms of the Compact.

              In our judgment, the Compact applies. Respondents’ conception of and
definition of placement is too narrow. The purpose of the Compact is to facilitate
cooperation between states regarding the placement of children. The Child’s interests are
paramount. Here, the Trial Court acted as the sending agency, and dismissing DCS from
the case failed to get around the Compact. We find no exemption to be relevant.
Whether a transfer of custody, or placement, violates the Compact depends on the
circumstances. One condition is that a sister state, here California, approves the
placement. The Appellate Court of Connecticut discussed the importance of receiving
approval for placement from a sister state under the Compact as follows:

              In sum, none of the cases cited by the respondent support the
      proposition that a sending agency, in this case a court, may rely on an
      independent determination of the best interest of the child, to deliberately
      disregard the requirement of article III(d). We agree with the court in In re
      Adoption of Infants H., supra, at 904 N.E.2d at 208, that “[t]he conditions
      for placement set forth in article III of the Compact are designed to provide
      complete and accurate information regarding children and potential
      adoptive parents from a sending state to a receiving state and to involve
      public authorities in the process in order to ensure children have the
      opportunity to be placed in a suitable environment.” See also In re T.M.J.,
      supra, at 878 A.2d at 1203 (“[a]s the [interstate compact] dictates, [the
      receiving state’s] refusal to approve placement of the child with [the
      maternal grandmother] barred the Superior Court from ordering that
      disposition”); In re Luke L., 44 Cal.App.4th 670, 681–83, 52 Cal.Rptr.2d 53
      (1996) (reversing juvenile court decision authorizing out-of-state placement
      for failure to receive approval from receiving state).

              In the present case, the commissioner in January, 2008, requested
      that Florida complete an interstate compact study on the great-grandmother.
      At the time of the court’s decision, the study had not been completed, and
      Florida had not given notice pursuant to article III(d). Even if the court was
      justifiably concerned about Florida’s delay in processing the request for an
      interstate compact study, the court's conclusion that it could place the child
                                           -5-
      in Florida without approval from the authorities there contravenes the
      directives of the statute. Accordingly, we hold that the court improperly
      transferred guardianship to the great-grandmother in Florida.

In re: Yarisha F., 121 Conn. App. 150, 994 A.2d 296, 304 (2010) (footnote omitted).

              In the present case, California not only did not approve of the placement, it
actually had withdrawn its approval. Therefore, in transferring temporary custody of the
Child to Great Uncle in California, the Trial Court violated the Compact. We reverse the
Trial Court’s order placing the Child with Great Uncle in California.

             We next address whether the Trial Court erred in placing the Child with
Great Uncle in California even if the placement did not violate the Compact. Our
conclusion that the Compact applies and was violated in essence moots this issue but, for
purposes of completeness, we will address it.

              Tenn. Code Ann. § 37-1-129(c) (2014) provides: “If the court finds from
clear and convincing evidence that the child is dependent, neglected or unruly, the court
shall proceed immediately or at a postponed hearing to make a proper disposition of the
case.” Consistent with a child’s protection and welfare, a court may order one of a
number of dispositions best suited for the child, including transferring temporary legal
custody to the following: “Any individual who, after study by the probation officer or
other person or agency designated by the court, is found by the court to be qualified to
receive and care for the child . . . .” Tenn. Code Ann. § 37-1-130(a)(2)(A) (2014).

              The Trial Court described the troubling facts out of California as
“nitpicking.” We disagree strongly with this characterization. Multiple DUIs, marijuana
use by Great Aunt while leaving the Child with some other adults in the house, and a
reported domestic violence incident involving Great Aunt’s adult son resulting in a call to
9-1-1, however it transpired, are serious cause for concern, not mere nitpicking.
California certainly thought these incidents, along with the failure by Great Uncle and
Great Aunt to report them, were significant enough to withdraw its approval of the
Child’s placement in their home. A child’s blood ties to a potential placement family do
not override all other possible dangers to a child’s welfare. Indeed, California, the state
that did an actual home study of Great Uncle’s and Great Aunt’s home, withdrew
approval of the placement with Great Uncle and Great Aunt. We hold, even if the
Compact does not apply, that the Trial Court erred in concluding that the Great Uncle’s
and Great Aunt’s California home was a suitable placement for the Child.




                                            -6-
                                     Conclusion

              The judgment of the Trial Court is reversed, custody of the Child is
awarded to the Tennessee Department of Children’s Services, and this cause is remanded
to the Trial Court for collection of the costs below. The costs on appeal are assessed
against the Appellees, Daniel R., Gary R., and Bradley R.



                                               _________________________________
                                               D. MICHAEL SWINEY, JUDGE




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