The child, who has been in the custody of the Division of Family and Children Services since Jan. 22, will remain in the agency’s care, Averett determined.
Under the case plan presented in court, Michael Ferguson, the child’s father, will follow a plan to be reunified with his son. Averett upheld the plan’s recommendations to terminate the parental rights of Brandy Ann Boyd, the boy’s mother.
Dependency proceedings followed the Jan. 23 arrest of Boyd, the mother of Cowart and her older brother, and Austin Payne. Boyd and Payne are charged with felony murder in connection with Cowart’s death.
During the fourth and final hearing, counsel for the child, Anna Johnson, called her final two witnesses — the boy’s uncle and maternal grandfather.
Dale Boyd, the uncle, testified that he had concerns about Boyd’s ability to be a mother.
“Earlier in the year, shortly after the baby was born, I was with Brandy up at mom and dad’s house ... I held the baby, but several years prior to that, I know Brandy had struggled some when she was raising [her son]. She would cry and she felt like she was stressed and doing things on her own. ... I kind of understood that. ...,” he said. “So I was already concerned about her with [her son] even though she seemed to do OK with [her son]. And Jake is very good as a father. But I always had my concerns about Brandy and her being mature enough to be raising a baby.
“When I found out she was pregnant, I just got extremely concerned again. ... I got concerned about Brandy having another baby, and I talked it over with my brother and I talked to him about maybe we should talk to Brandy and see if she would be willing to give the child up for adoption. ... Naturally that did not happen.”
In August 2013, Boyd and his girlfriend met with DFCS intake worker Lucy Simpson about concerns for Boyd and Journey Cowart.
“Somewhere along the way she left in the car and ... never came back. ... Our whole side of the family just about became disconnected with Brandy,” he said.
Boyd testified that he told Simpson he was concerned because Brandy Boyd was missing and she possibly had the 8-month-old infant with her. He said he told Simpson there was rumored drug use by Brandy Boyd, who was possibly at her mother’s.
According to Simpson’s testimony, she met with Dale Boyd and his girlfriend but was provided only with the information that Brandy Boyd was missing and the baby was possibly with a family member. She said no contact information, address or mention of drug use was in her notes, which consisted of emails between Simpson and her supervisor, Autumn Eads.
Simpson testified that as an intake worker she would have been limited in her ability to search for Brandy Boyd’s address and would have relied on the reporter — Dale Boyd and his girlfriend — to provide additional information if it became available.
The intake report, according to Simpson’s testimony, was screened out and not entered into SHINES, a web-based, statewide automated child welfare information system used by case managers.
Simpson testified that reports screened out were then “shredded and burned” because they contained confidential information.
Averett questioned Simpson on why the Cowart report was not available.
“Ms. Simpson, I’m going to assume in training that you are taught to document the report information very accurately with detail, correct?” Averett asked.
“Yes,” Simpson said.
“Can you tell me why that wasn’t done in this case?” the judge asked.
“I’m sorry, your honor. What I have is from my emails and that’s all I recall about this report, and I don’t have that intake form that was used at that time,” Simpson testified.
“What would have happened to the intake form?” Averett asked.
“I would have shredded it — put it in the shred pile — and then a company picks it up and it’s shred and burned,” Simpson said.
“Well, that’s not real helpful for the court,” Averett said.
Eads later testified by phone that all reports, regardless of the final decision, would have been entered into SHINES under policy.
Johnson also provided information from Nayoki Cormier, a DFCS worker who failed to show up for court.
Cormier was contacted in October 2012 by a reporter over concerns about Brandy Boyd’s son. The reports alleged drug use.
The notes admitted by Johnson stated that Cormier went to the Kingston residence where Boyd resided and left a card without making contact. Two days later, she returned, found the business card still in the door and left another. On her third trip, she spoke with “folks” in the area of the Hardin Bridge Road residence who said the family had moved two weeks prior and no one with a son matching the age of the boy lived at the house.
During closing statements, Brandy Boyd’s counsel, Marc Clark, argued that the case plan tried and convicted his client before her day in court. He argued that Boyd she not have her parental rights terminated until the decision of the jury trial has been rendered.
Averett, however, said the criminal proceedings would not impact her decision.
“Miss Boyd, I have been in this line of work for over 13 years now and I can tell you that this is the worst case of child abuse this court has ever encountered. I can tell you that after receiving into evidence the 24 pictures of your dead child this court did not sleep for at least four nights. I can tell you that this court has drawn negative inferences to your Constitutional right to plea the Fifth Amendment and I will absolutely write a very detailed order concerning that. You drew the Fifth Amendment right to whether or not you inflicted blunt force trauma on your child, whether or not your broke five ribs of your child, whether or not you inflicted trauma to cause her anal bleeding, whether or not you bit this child, whether or not your boyfriend beat your child, whether or not you used methamphetamines, whether or not your boyfriend uses methamphetamines,” the judge said. “A duty of a parent is to protect their child. You have failed that, and this court has the right and is going to draw the negative inference that you are either responsible for the death of your child, participated in the death of your child or failed to protect your child, which caused her death.
“... I am not the jury that will try your criminal case and I understand Mr. Clark’s arguments that there is time, but based on the law and those circumstances, you don’t get the right to that time. And whatever happens with your criminal case is not going to effect the decisions of this court.”
Averett encouraged Ferguson to continue working toward reunification with his son before turning her attention to DFCS.
“... There are some facts that are very concerning to this court, and I think, if nothing else, there’s no question that every decision the Department of Family and Children Services makes could be a life-or-death decision for a child. And, unfortunately, we are sitting in a situation where a 1-year-old baby apparently, by the testimony that has been given to this court, was physically abused at the hands of her caregiver for more than half of her life and that weighs heavily on this court,” Averett said.
“As to August 2013 [DFCS report by Dale Boyd], I don’t know that there are words to describe the frustration that this court has for the complete failure of the department to make reasonable efforts,” she continued. “... The court certainly believes had there been any efforts made towards intake of ascertaining an address on this child and this mother, the court believes that we may not have a dead infant.
“... It graves this court significantly that the department failed Journey Cowart. I don’t think there is any other way that can be said.”