IN THE CHANCERY COURT FOR

KNOX COUNTY, TENNESSEE

State of Tennessee

Department of Human Service:

Petitoner:

Vs.

Mildred Yarberry,

Respondent:

June 29, 2000.

 

Findings of Fact And Conclusions of Law

CATE, Chancellor. This matter is before the court on the complaint of State of Tennessee Department of Human Service to provide protective services to respondent, Mildred Yarberry, pursuant to T.C.A.ON 71-6-101, et. Seq.

Ms. Yarberry was taken into custody of DHS on September 30,1999, was placed at the Serene Manor Nursing Home. She came under the care of Dr. Richard W. Robinson, a staff physician with that facility, who testified by deposition.

        Ms. Sheila Kite, is the social counselor with the Knox County Of DHS, testified that she had followed with Ms. Yarberry for several months prior to her being taken into DHS, custody.  Ms. Kite’s testimony showed that Ms. Yarberry did suffer from some degree of dementia and that she was unable to attend to the activities of daily living.  Specifically, she was unable to cook for herself and unable to keep her house and her person clean. Furthermore, Ms. Kite testified that Ms. Yarberry, who is a chain smoker, was careless in her smoking habits in that she left burning cigarettes around the house.

She furthermore, testified that the house was cluttered and roach infested. There was evidence of spoiled food in the refrigerator and on the front porch. For some time the Mobile Meals delivered food to Ms. Yarberry through the week. She received a number of other services from various home assistance agencies prior to her being placed at Serene Manor. In this case, the Department acknowledges that it must prove by a preponderance of the evidence that Ms. Yarberry is in need of protective services, that in the absence of those services she will be in imminent danger of irreparable physical or mental harm and that she lacks the capacity to consent to protective services.

The Department relies upon the testimony of Dr. Robinson to establish from a medical standpoint that Ms.Yarerry lacks capacity to consent to DHS services and that she faces imminent danger of irreparable physical or mental farm if she does not receive such services. Dr. Robinson testified that within minutes of his first contact with Ms.Yarberry he determined that she was suffering from dementia to the extent that she was unable to make rational sound judgments concerning her health and physical care.

He is concerned that she will not take her medication but, in the end his primary concern is her smoking habits. Ms. Yarberry, according to Dr.  Robinson, does not agree that she needs any help and Dr. Robinson feels that this is evidence of poor judgment on her part.

Dr. Robinson agrees that her lack of personal hygiene does not create a life-threatening situation nor does it create the risk of irreparable physical or mental harm. If she fails to take her medication then Dr. Robinson is of the opinion that her dementia would be accelerated. He concedes that with medication the disease will gradually progress and that the only associated harm with failure to medicate is the acceleration of the condition.

Ms. Yarberry initially declined to appear for the hearing in this cause.  The Court, however, was of the opinion that Ms. Yarberry’s testimony was essential and requested her presence on June 29, 2000, for in-chambers examination by counsel and the Court Respondent along with her brother, Elmer Grimes, appeared on this date and testified.

Ms. Yarberry stared that she considered herself as being incarcerated.

Continually referred to the nursing home as a jail. She stated that she would rather die than be forced to stay there and expressed an earnest desire to be allowed to go home.  Ms. Yarberry had some difficulty communicating because of slurred speech her brother attributes to the mini-strokes she has suffered in the past. She also has a very loose fitting lower denture which contributes to her speech problems. On one occasion she stated that she would let no no one but, Ms. Kite, the DHS worker, check on her if she was allowed to go home. Later she stated that she would be willing to accept DHS services.  When asked how would care for herself?

She replied “The best I can”.

She denied that she is unsafe in her smoking habits but acknowledged that there are burn marks on her floors. She stated these had accumulated over time and her brother confirmed this.

She stated that she would accept help getting her house straightened back up. Mr. Grimes testified that the house had been broken into four time since she was taken into DHS custody and many of her household items had been stolen. He said Ms. Yarberry was very despondent over the loss of items, such as her television and her microwave.

Respondent testified that she had a pill dispenser that allowed her to keep track of her daily medications.  She testified that she did in the past and would in the future take her medication as prescribed.

Mr. Grimes felt his sister should be allowed to go home where she “has lived all her life”. He felt she was grieving herself to death at the nursing home. He offered to check on her frequently and to arrange for someone to live with her, although he was very vague on the details.

Mr. Grimes himself suffers from health problem that may impede his ability to assist respondent.  Further, he is extremely hard of hearing which coupled with Ms.  Yarberry’s speech problem makes it somewhat difficult for them to communicate.  It should be noted that Ms. Kite testified that in the past she had solicited Mr. Grimes aid in caring for his sister and was told that due to his own health problem he could barely care for himself much less take care of her. Without question, Ms. Yarberry is living in a cleaner and safer environment at the nursing home. There have been concerns expressed about her eating habits but the Court notes that there is no indication either at the time she was taken into custody of DHS or at the present that she suffers from any degree of malnutrition. Of course, Dr. Robinson expressed no immediate concern for malnutrition resulting from her eating habits.

In State Department of Human Services V. Northern, (Tennessee Ct.

App. 1978) the Court of Appeals examined the terms “imminent danger” and “capacity to consent”. There the Court defined the term imminent danger of death as meaning conditions calculated to and capable of producing within a short period of time a reasonable strong probability of resultant cessation of life if conditions are not removed or alleviated.

Capacity to consent means “mental ability to make a rational decision, which includes the ability to perceive, appreciate all relevant facts and to reach a rational judgment upon such facts”. Id at page 209 Based upon personal observation of the respondent and after carefully considering her testimony, the Court concludes that she indeed lacks the capacity to consent to DHS services in that she does not the ability to perceive and appreciate all relevant facts and to reach a rational judgment upon such facts.

There is no question that Ms. Yarberry needs the assistance of DHS services or other services and further no question but that she lacks the ability to perceive that need. In this case there so no immediate threat of cessation of life to Ms.  Yarberry so the definition of imminent danger must be appiled to physical harm as opposed to death.

Accepting the Court of Appeals definition of imminent danger this Court holds the the State has the burden of proving by a preponderance of evidence that Ms.Yarberry, if allowed to return to her home, would face conditions calculated to and capable of producing within a short period of time a reasonably strong probability of irreparable physical harm.

Even though the concerns of Ms.  Kite and Dr. Robinson are well founded there is no proof in this case that Ms. Yarberry’s smoking habits create condition calculated to and capable of producing within a short period of time a reasonably strong probability of resultant irreparable physical harm.  While it unquestionably is in ms.  Yarberry’s best interest to receive DHS services, her best interest is not the issue in this case. The Legislature has cloaked the Department of Human Services with an overwhelming authority over the person of citizens of this State over the age 60. however, that authority has been tempered by imposing a burden upon the State to prove, although only by a preponderance of evidence, that there exists a reasonably strong probability of resultant irreparable physical harm if conditions are not removed or alleviated.  The proof in this case fails to even establish that it is more likely than not that Ms. Yarberry, who has been a long time smoker, will suffer some irreparable physical harm as a result of her smoking. At best, if such imminent danger exists, the danger is relatively mild.

If Ms. Yarberry was left under the care of DHS there is no question that would be kept in a cleaner, safer environment.  There is likewise no question that she would be better fed and better cared for than if she is released from the nursing home.

Thus, the Court finds that Ms. Yarberry is in need of the services of DHS, lacks the capacity to consent to such services, and is in a relatively mild danger of suffering irreparable physical or mental harm. The Court, accordingly, finds that custody in a nursing home is not appropriate under the circumstances and orders that Ms. Yarberry be released from Serene Manor at the earliest possible date, dependent upon when her residence can be restored to a livable condition. However, DHS may continue to provide such services at home as may be neceeasry and the release from the nursin home is conditioned upon Ms. Yarberry’s continued cooperation and the assistance from her brother,Mr. Grimes.

Counsel for respondent is to prepare the judgment in this case after consultation with counsel for the Department. Should counsel be unble to agree upon the language of the order, or if futher matters need to be brough to the Court’s attention, than counsel is to arrage for an in-chamber meeting with the Court.