IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs September 15, 2008
STATE OF TENNESSEE
DEPARTMENT OF CHILDREN’S SERVICES v. V.N., ET AL.
Appeal from the Juvenile Court for Greene County
No. J20604 Kenneth N. Bailey, Jr., Judge
No. E2008-01032-COA-R3-PT - FILED OCTOBER 27, 2008
The State of Tennessee Department of Children’s Services (“DCS”) filed a Petition to Terminate
Parental Rights of V.N. (“Mother”), T.W., and any unknown father to the minor child K.B.N. (“the
Child”). T.W. signed a Waiver of Interest and Notice waiving any rights he may have to the Child.
After a trial, the Juvenile Court entered an order finding and holding, inter alia, that clear and
convincing evidence of grounds existed to terminate Mother’s parental rights to the Child under
Tenn. Code Ann. §§ 36-1-113(g)(1), (g)(2), and (g)(3), and that it was in the best interest of the
Child for Mother’s parental rights to be terminated. Mother appeals the termination of her parental
rights to this Court. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed;
Case Remanded
D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J. and
SHARON G. LEE, SP. J., joined.
Leslie E. Douthat, Greeneville, Tennessee for the Appellant, V.N.
Robert E. Cooper, Jr., Attorney General and Reporter; and Elizabeth C. Driver, Senior Counsel for
the Appellee, State of Tennessee Department of Children’s Services.
OPINION
Background
The Child was born in June of 2001. In the summer of 2006, the Child was taken into
State custody. At that time, Mother was in jail. Mother had left the Child with her mother
(“Grandmother”), but Grandmother had been arrested and taken to jail on a DUI charge leaving the
Child with Mother’s sister. The Child was taken into State custody after Mother’s sister was arrested
for a fourth DUI, among other things.
On February 28, 2008, DCS filed a Petition to Terminate Parental Rights of Mother,
T.W., and any unknown father, to the Child. T.W. signed a Waiver of Interest and Notice waiving
any rights he may have to the Child. The case proceeded to trial in May of 2008.
At trial, Grandmother, who had filed a petition for custody of the Child, testified that
she wished to withdraw her petition, and that she believed that the Child was in the best placement
for her with the foster family. Grandmother stated: “I can’t provide for her really, and I’m too old
to take care of her. I can’t give her the things that somebody else can.”
Brenda Sharon Yusco a therapist with Nolachuckey Mental Health Center has been
treating the Child since January 11, 2007. Ms. Yusco sees the Child one to three times a month
depending upon the Child’s needs. Ms. Yusco testified that the Child has not spoken much about
Mother, but has spoken about her foster parents. Ms. Yusco testified that the Child’s feelings for
her foster parents are “[g]enerally very positive, seems to have a relationship, a positive relationship
and feels a sense of security with them.” Ms. Yusco further stated that the current foster placement:
appears to be very stable. They’re very nurturing with [the Child]. They both seem
very invested. They both come to sessions with [the Child] and they come regularly
to the sessions. They seem very interested in her well-being. They make regular
school contacts. The foster mom is always able to inform me of school progress.
She’s familiar with the teacher, so has a real good relationship with the school
situation. And they, they appear very nurturing in sessions with her.
Ms. Yusco testified that her intake record regarding the Child reveals:
[the Child] was, is brought to the Center by Becky Hite, DCS and Pam, her current
foster parent. It was, she was having a lot of anger problems, often the behavior’s
at night prior to bedtime. She had scratched the foster mother and scratches herself
when angry. Gets very angry, gets tense, wants to scratch. She gets upset afterwards
and needs reassurance. [The Child] went into custody 7/30/2006. She was in a
different foster home prior to Pam. [The Child] was removed from this home. [The
Child] has been at Pam’s since 11/27 of 2006. [The Child] also has some tantrums
at school. School behavior has improved. Easily frustrated. [The Child] was
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removed due to being in the car with an aunt who was drinking and driving.
Grandmother who had custody was incarcerated at the time.
When asked if it would be damaging to the Child to be in limbo for the next nine to
twelve months waiting for Mother to be released from jail and work a permanency plan, Ms. Yusco
stated:
As [the Child’s] presented with the stressors, when she’s faced with stressors, the
instability could be very harmful for her, just based on what I’ve seen and when she
deals with the stress in her life. I mean, she becomes so anxious and, you know,
almost wants to isolate herself at the foster home, and she’s very fearful of
separation. You know, I, at times it’s almost appeared there [is] some post-traumatic
stress for [the Child], although I, I have at this point not diagnosed that.
Ms. Yusco anticipates that the Child will need to be in counseling for at least another year or two.
Becky Hite, a former DCS case worker in the Greene County Office, worked this case
beginning in August of 2006. Ms. Hite testified regarding the initial Permanency Plan dated August
16, 2006 (“First Perm Plan”). Ms. Hite testified regarding the tasks to be accomplished by Mother
under the First Perm Plan stating:
The first one was that she would complete alcohol and drug treatment and maintain
an alcohol and drug free lifestyle. That she would be able to provide financially for
herself and her child, and that she would have the parenting skills necessary to parent
her child. That she would have stable employment. That she would have safe and
independent housing. That she would not let anyone in her home using illegal drugs.
That she would do the parenting assessment and follow recommendations. That she
would submit to random drug screens. That she would resolve her legal issues and
comply with the rules of probation. That she would enroll in counselling (sic) at the
Mental Health Center or with a private provider, and that she would do the alcohol
and drug assessment and follow the recommendations.
Mother did not sign the First Perm Plan on the advice of her previous counsel. Ms.
Hite testified that she read the First Perm Plan to Mother, explained it to her, and asked Mother if
she had any questions about it. Mother also was given a copy of the First Perm Plan. Ms. Hite
testified that even though the First Perm Plan was only ratified for Grandmother, Mother had
knowledge of it and was working toward it. Ms. Hite reviewed the First Perm Plan with Mother
while Mother was incarcerated and then again after Mother was released.
Mother was incarcerated for the majority of the time Ms. Hite worked on this case.
Ms. Hite testified that Mother did not complete a rehab program and did not have independent
housing or a job when she was released from jail. Mother had been employed in the past and never
told Ms. Hite that she didn’t know how to find a job. Ms. Hite stated: “We discussed housing, like
her trying to get independent housing, not, not living with somebody else, but actually getting an
apartment with her name on the lease so nobody would be able to kick her out, you know, or
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anything if she didn’t actually rent the apartment.” Mother did not obtain housing while Ms. Hite
was the case manager for this case. Mother did submit to some random drug screens and did have
a parenting assessment. Mother took a drug screen on June 12, 2007 and it was negative. Ms. Hite
testified that Mother completed an A&D assessment and a parenting assessment.
Mother was released from jail on August 31, 2006 and was back in jail on September
8, 2006. Mother was released from jail on February 7, 2007 to have another baby and was back in
jail approximately three weeks later to finish serving her time. Mother was supposed to complete
the tasks on the First Perm Plan by February 16, 2007.
When asked what was done to assist Mother, Ms. Hite stated:
DCS had Solutions to help her with the parent[ing], to do the parenting assessment
and they were following through with any recommendations from the assessment,
such as parenting education classes, supervised visitation when she was out of jail.
We were also, when she got out of jail we were working on trying to get her some
housing. She, she had a list of places she could check and she was checking on some
herself and DCS was going to try to assist her with, like getting the electricity hook-
up, the, the deposit for the rent and things like that.
When Mother got out of jail, DCS set up substance abuse treatment for her with
Nolachuckey Mental Health. Ms. Hite testified that DCS did a referral for drug screens because
Mother could not afford them herself, helped Mother with the mental health intake at Nolachuckey,
and tried to assist Mother with finding housing. Ms. Hite testified that when Mother was out of jail:
She did complete the assessment at Nolachuckey Mental Center, the mental health
intake appointment. I don’t know if she followed through with any of the
recommendations. She did not get employment. She did not get independent
housing.
Ms. Hite testified that Louise Verran, the Solutions worker, conducted supervised
visitations with Mother, Grandmother, and the Child approximately half a dozen times and that as
part of that visitation, Ms. Verran worked to provide a generic parenting class.
From April 19, 2007 through June 27, 2007, nine visits were scheduled for Mother
with the Child, but Mother attended only four of these and was late for one of those four. The family
visit of June 27, 2007 was a birthday party for the Child. Mother had promised to bring a cake and
presents, but she failed to show up.
By order entered August 1, 2006, the Juvenile Court found that reasonable efforts
were made to prevent the Child’s removal from the home. Ms. Hite ceased being the case manager
in May or June of 2007.
The case was transferred to another case worker, Brooke Slocum, on June 20, 2007.
Another permanency plan dated July 12, 2007 (“Second Perm Plan”) was prepared and was
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introduced at trial during Ms. Slocum’s testimony. Mother did not sign the Second Perm Plan and
objected to its introduction at trial claiming that it constituted hearsay. The Juvenile Court entered
the Second Perm Plan over Mother’s objection. The Second Perm Plan is substantially similar to
the First Perm Plan with regard to the tasks for which Mother was to be responsible. The Juvenile
Court entered an order September 14, 2007 approving the Second Perm Plan and finding that DCS
“has used reasonable efforts to reunite the child with the mother and has attempted to work with the
mother, but she is not cooperative.”
Ms. Slocum testified regarding Mother’s visitations with the Child stating:
[Mother] had, when I became the case manager, the 6/27/07 visit, which was the
birthday party that she didn’t show up for, the 7/5/07 visitation that she didn’t show
up for, and the 7/11 visitation, or actually the 7/5 was offered to her but she chose not
to. She wanted it for the following week. And then 7/11 was a no-show where the
supervisor and [the Child] waited at McDonald’s. And then there was a 7/19/07
visitation that I supervised.
When she supervised the visit, Ms. Slocum observed:
There was minimal interaction between [the Child] and [Mother]. There was
numerous family members there. [The Child’s], or [Mother’s] son was brought in
by a relative. [Mother] went outside; she smoked a cigarette. She interacted with a
police officer. [The Child] played mostly in the, the play yard and with the, the child
of a friend of [Mother’s] that brought [Mother] to the visitation.
By the time of this visit almost a month had elapsed since Mother had last seen the Child. After July
19, 2007, there were no more visitations because Ms. Slocum was unable to locate Mother. Ms.
Slocum tried to contact Mother by phone and through Grandmother, but was unable to contact
Mother. Mother did not call Ms. Slocum. Ms. Slocum testified: “I talked with [Mother] at two
visitations that I was present at, the, the one where I was introduced to her and that was on 6/20/07,
and then that visitation on 7/19/07. Otherwise, it was me attempting to contact her.”
When asked if she checked to see if the Greene County Jail, where Mother was
incarcerated, had programs available to assist with things like housing and drug assessment, Ms.
Slocum stated: “I had been informed on another case that, and I do know that state prisons have
those kinds of facilities, that Johnson City may, but I was informed that Greene County did not,
apparently….” Ms. Slocum testified that to her knowledge DCS has never provided any type of
services to someone in jail.
When asked if the Child ever told her anything about Mother, Ms. Slocum stated:
She has, I mean, kind of historically said that she worries about [Mother]. Said that
she, most specifically, I think because it’s the freshest in my memory, the last visit
that we had on April 30th, she asked if her mom was still in jail. I asked what she
knew about jail, and she said that she had been there. And I kinda looked at her and
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she said I didn’t do anything bad. And I said okay, and she said she went to visit her
aunt there, that she worried if her mom was doing really well and she wanted her
mom to do well.
Although Mother had an opportunity to work the permanency plan when she was
released in April and out of jail until June, Mother still was substantially noncompliant with the plan
during that time period. Ms. Slocum testified that Mother completed only one component of the
permanency plan, getting a psychological assessment, but that Mother did not follow through with
the recommendations of that assessment.
Ms. Slocum testified that in her opinion it is in the Child’s best interest for Mother’s
parental rights to be terminated. Ms. Slocum testified that the Child’s foster parents want to adopt
the Child.
Karen Brown, a probation officer with the First Tennessee Human Resource Agency,
testified that Mother was placed on probation with her in 2002. Mother was already on probation
when Ms. Brown joined the First Tennessee Human Resource Agency. Mother has been on
probation with Ms. Brown on and off since 2002.
Ms. Brown testified that in April of 2007, Mother was on probation “for a theft,
driving on suspended, and I think paraphernalia, possession of drug paraphernalia.” Ms. Brown saw
Mother in June of 2007. In July of 2007, Ms. Brown had a warrant issued on Mother for violation
of probation. Mother pled guilty to this charge. Mother then was incarcerated on a separate matter
in September of 2007. When asked whether she had drug screened Mother, Ms. Brown testified:
The last time I screened her - one thing I guess I need to explain is I haven’t seen
[Mother] that much. Most of the time she’s either violated or in jail. So the best that
she’s ever done was last year in, in May and June when she reported. I did not drug
screen her either of those times. I didn’t feel the need to. She was, she was actually
doing pretty well.…But she got in trouble again. But I have drug screened her,
probably in several years. I would go back at least four years. Most of that time
she’s either incarcerated or she’s out on a violation warrant.
Ms. Brown agreed that since her initial contact with Mother in 2002, Mother has been in jail more
than she’s been out on probation.
Terry Landers testified for Mother. Mr. Landers has known Mother for about seven
years as a friend. Mr. Landers is disabled, and he testified that Mother cleaned his house and washed
clothes for him. Mr. Landers testified that Mother did not have a place to stay when she was
released from jail to have a baby, so:
I told her I need somebody to do my laundry and wash dishes and cook and stuff like
that. So I told her - I’ve, I’ve got a two-story house and it’s got an upstairs, got two,
two bedrooms upstairs and a big walk-in closet.…And I told her she could just move
up there and I could pay her a wage or something, you know, to help, help me out.
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Mr. Landers testified that he has “8 and a half acres of property and a barn and a chicken house and
a two story house. It’s got 1, 2, 3, 4, 5 bedrooms, a kitchen and a living room.”
Mr. Landers trusts Mother and stated: “[s]he’s a real good person. She’s kind
hearted.” Mr. Landers thought that Mother was in jail for violating probation, but did not know what
Mother was on probation for, and did not know that Mother has been in jail twenty times since 2002.
Mother testified at trial. She was asked if she understood the things she was supposed
to do under the permanency plan and she stated: “No.…Yeah. I didn’t understand the, I’ve never
had to depend on myself so really, I didn’t even know what place to work.” When Mother was asked
what services were offered to her by DCS, she stated:
There were services offered to me, but it wasn’t really nothing to help me. They
never really showed me the way in doing anything. I mean, they would explain stuff
to me, but I’ve, I’ve never really had to depend on myself before, so I really didn’t
know what to do.
Mother was questioned about the time she was out of jail from April 19, 2007 through
August 28, 2007. She stated:
Well, when I got out of jail I went, I had my other two kids and I know that I, I did
the wrong by going, I went and got my other two kids, which I shouldn’t have done,
because it was too much on me and I couldn’t do it. Trying to work, trying to take
care of both of my other kids, do probation and trying to do, complete Permanency
Plans for [the Child], I couldn’t do it all. But I was trying to do all that I could and
put all the effort that I could at that time in on it.
Mother testified that when she got out of jail in April she went back to work taking care of Mr.
Landers and stated: “I didn’t work for him every day though. I just worked enough to where he
would pay my court costs and my fines.…’Cause his son was living there and I couldn’t stay with
him at that time because he was providing a home for his son.” When asked if she considered the
Child’s interests at all while she was out of jail, Mother stated: “Yes, I did, but I knew that I couldn’t
do it. I wasn’t getting no help from nobody so it was hard to do. I don’t have license (sic) and I
don’t have no car. I don’t have nobody to help me. My family’s in my situation so….”
When asked why DCS was unable to get in touch with her, Mother stated:
I didn’t, ’cause I didn’t have no place to live, I didn’t have nowhere to have a
phone.…I had to take my other two kids back to the people that had temporary or had
prior attorney (AS STATED) of them because I couldn’t support them and I couldn’t
do it all by myself. So I just pretty much gave up at that point.
Mother also testified:
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Well, I’ve been, I’m just going to put it like this. I know [the Child] - I’ve had a
rough life all my life and I know she’s probably better off where she’s at, but I want
to see her and I love her ’cause she’s my baby. And I know they can probably
provide better than what I can. But I love her, you know. That’s all I ask, is for
visitation with her. I know I probably couldn’t give her what they can give her. I
know they can give her more, more than I can. The only thing I ask of the Court
whatsoever is that I can get visitation with her. I’ll let them adopt her or whatever
it takes. I just want to see her if I’m doing good. And I’ve been trying to do my
GED in jail. I’ve been taking, I’m taking my practice test right now. And I, I mean,
I mean, I can ask for another chance but I’m sure I’m not going to get, but I want to
do everything I can to see my kids because I love my kids. Yeah, I’ve had a drug
problem for years and I’ve never been able to get in rehab. I’ve never, I’ve never
even had any help to, you know, get to that point of rehab. I’ve tried to do it on my
probations and stuff and I couldn’t get in. And it was just too much on me at one
time and I’d get out there and mess with the wrong people. I want to make a life for
my kids, though. I know when I get out I’m not going to be on no paper because
Terry’s going to pay my probation officer. So I don’t think I’m going to be in any
more trouble ’cause drugs ain’t my thing no more and I’m done with them. I can’t,
I don’t know. I guess, I just want to be a part of [the Child’s] life ’cause I know she
loves me and I love her. All I ask is for some type of visitation with her.
Mother testified that she was due to get out of jail in June. Mother testified that she
is going to live at Mr. Landers’ house when she gets our of jail and stated:
he’s going to give me, when I get out that’s where I’m going to go and stay. He’s
got, he has put a bed in an extra room and I’m going to start taking care of him from
the time I get out of jail on. He’s going to pay my, he’s going to help me get on my
feet.
When asked why she missed visitations, Mother stated: “Because I didn’t have no
ride, and they, they moved visitation from my mama’s and I was always, I would always stay with
my mom where I could see [the Child] and I just didn’t have no transportation.…My mom didn’t
have, they wouldn’t, they didn’t have our visits together.” Mother testified that she failed to show
up at the Child’s birthday party as promised: “’Cause I didn’t have nothing to give her, and I didn’t
want to, I didn’t, I was embarrassed. I didn’t show up, ’cause I didn’t want to hurt her no more
’cause I didn’t have nothing. I had no job. I had no way of getting her anything.” Mother
volunteered to bring the things to the birthday party “[b]ecause I thought I could do it.”
Mother testified that the Child lived with Grandmother and stated: “she’s always lived
with my mom but I’ve always lived with my mom. So we was always together.…I’ve always lived
with [the Child]. I just, my mama always had custody because I was in and out because I was on
drugs and I couldn’t, I was just, I was pretty much, I would go to my mom’s to spend time with [the
Child] and leave.”
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When the guardian ad litem asked how Mother could convince the court that things
would be different this time, Mother stated:
I, I get out in a month.…Why am I changing? Because…Because, like I said, I got
out and I had every, I still got every intention I’m doing right for her, but I put too
much on me at one time. I was having too much and I wasn’t having enough help
and I couldn’t do it by myself.…Which now I have Terry that’s going to help me pay
my financials and, and I can take care of him and he’s going to provide me a place
to live, and he’s got a five bedroom house and they ain’t nobody living there but him.
And I’m, I’m willing to do whatever to get her back, or I’m doing whatever to get
visitation with her. I just, I just know I don’t want to be took out of her life. And it
don’t matter what I have to do. I, the reason, the whole point is I thought my mama
was going to get her back anyway. That’s the whole reason I really didn’t - - I mean,
I did what I had to do but I didn’t really try, try as hard as I could, because I thought
Mama was getting her back. Mama told me she was getting her back. Mama had
done everything she was supposed to get her back so I thought she was getting her
back.
After trial, the Juvenile Court entered an Order Terminating Parental Rights on June
19, 2008 finding and holding, inter alia:
The Court finds, based upon the testimony and the facts that have been
presented here today, that the grounds, by clear and convincing evidence, exist under
Tennessee law for abandonment; that given [Mother’s] lifestyle and conduct prior to
her most recent incarceration, that she exhibited a wanton disregard for the welfare
of her child, given the fact that she’s had nineteen prior incarcerations prior to the
most recent one. Furthermore, that she had a drug addiction, which she has admitted
to the psychological examiner, which is a wanton disregard for the welfare of her
child, and she admitted that her mother was essentially taking care and raising her
child. So I find the Department has met the grounds for abandonment.
Secondly, I find the Department has met the clear and convincing burden of
proof of the grounds for substantial noncompliance, by [Mother], with the
responsibilities in the Permanency Plan. The Permanency [P]lan was adopted by this
Court in September of 2006 and which [Mother] received a copy. Even though she
refused to sign it on advice of counsel, she did receive a copy of it, knew that it
required her to do certain things, and she failed to do those things. She was to
complete an Alcohol and Drug Assessment and follow the recommendations. She
was to complete a rehab program and participate in aftercare by attending AA or NA
meetings. She didn’t complete a rehab program and there’s no evidence that she
attended any AA or NA meetings. She did not, and there’s been no testimony that
she submitted to counseling at the Mental Health Center. There’s been no testimony
that she had resolved her legal issues, and actually after this Permanency Plan was
put into effect she added to her legal issues with further incarcerations. I further find
that under the Permanency Plan she [was] required to obtain and maintain
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employment. She was not able to do that. She was working for this Mr. Landers, but
there has been no proof of what her actual pay was or pay stubs or bank account
records. And further, she did not complete the parenting assessment, and she was out
of jail for a period of five months, and during that time she only visited her child five
times. And so there was really no effort being put forth by [Mother] to substantially
comply with or even comply at all with the Permanency Plan, and the Court finds
that there was ample evidence presented to prove that she substantially failed to
comply with the Permanency Plan.
Ground Number 3, the Court finds as to the termination, by clear and
convincing evidence, of [Mother’s] rights is for the persistence of conditions. At the
time this child was removed by the Department of Children’s Services, the
grandmother, who was the custodian of the child at the time, was in jail. The
mother…was in jail, and an aunt, who had just physical custody of the child, did not
have legal custody, was arrested for a DUI forth offense. And so there was a valid
basis for the child to be placed in the care and custody of the Department of
Children’s Services.
The conditions which led to that removal still exist, and there’s been no
evidence that they’ve been remedied, and given the fact that the mother is still in jail,
there is little likelihood the conditions would be remedied at an early date. The Court
believes, even upon her release in late June of 2008, that it would take [Mother] at
least a year to work a Permanency Plan (and the Court believes she would not be
successful) and that would just mean that the child would be in custody for another
twelve months, which would put her at almost 32 months being in custody of foster
care. And the Court finds that that’s unreasonable and is not in the best interest of
the child.
The Court also finds that the continuation of a parent/child relationship
between [Mother] and [the Child] would greatly diminish the child’s chances of early
integration into a safe, stable and permanent home. Based upon the testimony of all
those involved, the child’s current placement is in her best interest. It is a stable and
safe and permanent home, and the foster parents are willing to adopt. So the Court
finds that by clear and convincing evidence grounds exist for termination of
[Mother’s] rights based upon the persistent (sic) of conditions, substantial
noncompliance and abandonment.
As to the second prong of a termination of parental rights, the best interest of
the child, the Court finds that by clear and convincing evidence that it would not be
safe at this time for the child to be returned to the mother or her home. The Court
finds that the mother has failed to make an adjustment in her life, a lasting
adjustment at this time to allow for reunification. The Court finds that a change at
this time of the caretakers of this child would have a detrimental, emotional,
psychological effect upon the child because she is attached to her foster parents. The
Court has no doubt that this child loves her grandmother and loves her mother, but
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that the child has found a safe and stable home, and the Court believes that’s in the
child’s best interest.
The Court wishes to comment on the [Grandmother’s] testimony today, and
to say it appreciates the fact she has her granddaughter’s best interest in mind when
she testified that she thought her granddaughter was in a good placement; the foster
parents were taking good care of her. Actually, she said “the best care.” And so I
appreciate her honesty with that. The Court knows that it’s tough for a grandmother
to have somebody else taking care of her granddaughter, and I know it’s tough for
her to sit here and look at her daughter and say that she thinks her granddaughter is
in the best place.
Furthermore, the home where the child would be, if in the custody of the
mother, is not an appropriate home. Based upon prior history, there’s been criminal
activity around the child when she’s been in the custody of the mother, given her
drug use and other problems that have led to her incarceration. So the Court finds
that by clear and convincing evidence that it is in the best interest of the child that the
parental rights of [Mother] be terminated.
As to [T.W.], [he] has signed a waiver of any rights that he may have to this
child. The Court finds that said waiver is proper and appropriate. The Court also
notes that it’s in the best interest of [the Child] that the relationship and any parental
rights of [T.W.] be terminated and it is in her best interest that she remain in her
current placement based upon the termination of the rights of [T.W.].
Mother appeals the termination of her parental rights to this Court.
Discussion
Although not stated exactly as such, Mother raises six issues on appeal: 1) whether
the Juvenile Court erred in failing to grant Mother a continuance; 2) whether the Juvenile Court erred
in admitting the two permanency plans; 3) whether the Juvenile Court erred in finding that clear and
convincing evidence existed to terminate Mother’s parental rights for abandonment; 4) whether the
Juvenile Court erred in finding that clear and convincing evidence existed to terminate Mother’s
parental rights for failure to substantially comply with the permanency plan; 5) whether the Juvenile
Court erred in finding that clear and convincing evidence existed to terminate Mother’s parental
rights on the ground of persistent conditions; and, 6) whether the Juvenile Court erred in finding
clear and convincing evidence that it was in the Child’s best interest for Mother’s parental rights to
be terminated.
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.
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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).
Our Supreme Court reiterated the standard of review for cases involving termination
of parental rights stating:
This Court must review findings of fact made by the trial
court de novo upon the record “accompanied by a presumption of the
correctness of the finding, unless the preponderance of the evidence
is otherwise.” Tenn. R. App. P. 13(d). To terminate parental rights,
a trial court must determine by clear and convincing evidence not
only the existence of at least one of the statutory grounds for
termination but also that termination is in the child's best interest. In
re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002) (citing Tenn. Code
Ann. § 36-1-113(c)). Upon reviewing a termination of parental
rights, this Court's duty, then, is to determine whether the trial court's
findings, made under a clear and convincing standard, are supported
by a preponderance of the evidence.
In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006).
In Department of Children’s Services v. D.G.S.L., this Court discussed the relevant
burden of proof in cases involving termination of parental rights stating:
It is well established that “parents have a fundamental right to the
care, custody, and control of their children.” In re Drinnon, 776
S.W.2d 96, 97 (Tenn. Ct. App. 1988) (citing Stanley v. Illinois, 405
U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972)). “However, this
right is not absolute and parental rights may be terminated if there is
clear and convincing evidence justifying such termination under the
applicable statute.” Id. (citing Santosky v. Kramer, 455 U.S. 745,
102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982)).
Termination of parental or guardianship rights must be based
upon a finding by the court that: (1) the grounds for termination of
parental or guardianship rights have been established by clear and
convincing evidence; and (2) termination of the parent’s or guardian’s
rights is in the best interests of the child. Tenn. Code Ann. §
36-1-113(c). Before a parent’s rights can be terminated, it must be
shown that the parent is unfit or substantial harm to the child will
result if parental rights are not terminated. In re Swanson, 2 S.W.3d
180, 188 (Tenn. 1999); In re M.W.A., Jr., 980 S.W.2d 620, 622
(Tenn. Ct. App. 1998). Similarly, before the court may inquire as to
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whether termination of parental rights is in the best interests of the
child, the court must first determine that the grounds for termination
have been established by clear and convincing evidence. Tenn. Code
Ann. § 36-1-113(c).
Dep’t of Children’s Servs. v. D.G.S.L., No. E2001-00742-COA-R3-JV, 2001 Tenn. App. LEXIS
941, at **16-17 (Tenn. Ct. App. Dec. 28, 2001), no appl. perm. appeal filed. Clear and convincing
evidence supporting any single ground will justify a termination order. E.g., In re Valentine, 79
S.W.3d 539, 546 (Tenn. 2002).
We begin by addressing whether the Juvenile Court erred in failing to grant Mother
a continuance. “The granting or denial of a motion for a continuance lies in the sound discretion of
the court. The ruling on the motion will not be disturbed unless the record clearly shows abuse of
discretion and prejudice to the party seeking a continuance.” Blake v. Plus Mark, Inc., 952 S.W.2d
413, 415 (Tenn. 1997) (citations omitted).
The Juvenile Court found Mother to be indigent and appointed her an attorney by
order entered March 13, 2008. Apparently, Mother was not happy with that attorney and she ‘fired’
the attorney and requested that new counsel be appointed. The Juvenile Court appointed Mother’s
current attorney by order entered May 1, 2008, nunc pro tunc to March 25, 2008. At trial, the
Juvenile Court heard argument on Mother’s motion for continuance. Unfortunately, this motion is
not in the record on appeal. The trial transcript shows that Mother’s attorney stated that the motion
for continuance was filed “due to the late date of my appointment” and because Mother “feels it
would be in her best interest to allow Counsel more time to adequately prepare.” The Juvenile Court
denied the motion stating:
Well, Ms. Douthat was recently appointed, however that was done so at the request
of [Mother]. She had asked for a new attorney. The Court reluctantly agreed to
appoint a new attorney, but she has put her attorney in this position herself by
dismissing her former attorney. So I’m not going to continue the case today.
As pertinent to this issue, Tenn. Code Ann. § 36-1-124 provides:
36-1-124. Contested terminations of parental rights and adoptions – Appeals –
Expedited schedule. – (a) In all cases where the termination of parental rights or
adoption of a child is contested by any person or agency, the trial court shall,
consistent with due process, expedite the contested termination or adoption
proceeding by entering such scheduling orders as are necessary to ensure that the
case is not delayed, and such case shall be given priority in setting a final hearing of
the proceeding and shall be heard at the earliest possible date over all other civil
litigation other than child protective services cases arising under title 37, chapter 1,
parts 1, 4 and 6.
***
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(c) It is the intent of the general assembly that the permanency of the placement of
a child who is the subject of a termination of parental rights proceeding or an
adoption proceeding not be delayed any longer than is absolutely necessary
consistent with the rights of all parties, but that the rights of the child to permanency
at the earliest possible date be given priority over all other civil litigation other than
child protective services cases arising under title 37, chapter 1, parts 1, 4 and 6.
Tenn. Code Ann. § 36-1-124 (2005).
In her brief on appeal, Mother states that her “present counsel was appointed a mere
forty-five (45) business days prior to the Termination Proceeding.” Mother argues that had she had:
an opportunity to investigate adequately, [Mother] would have subpoenaed Louise
Verran of Solutions to verify that the therapeutic visitation was provided only to
[Grandmother], which would have proven more efficiently that the Department failed
to make reasonable efforts to [Mother] and negating (sic) the allegation of failure to
comply with the permanency plan. [Mother] did have the records from Ms. Verran;
however, those records are not indicative of the interaction Ms. Verran had with
[Mother] and or the interaction Ms. Verran had with [Grandmother]. Therefore,
[Mother] did ask for another continuance in order to obtain the testimony of Ms.
Verran; however, that was denied as well.…[Mother] argues Ms. Verran’s testimony
would have illustrated that the therapeutic visitation was only conducted with
[Grandmother], never [Mother], which would prove the Department failed to provide
reasonable efforts to assist [Mother] in complying with the permanency plan.
Unfortunately for Mother, even if Ms. Verran had been called to testify and her
testimony had shown what Mother asserts it would have, Mother failed to exercise most of the
visitations offered to her. It defies logic to assume that if visitations had been provided to Mother
by Solutions, rather than by DCS as was done, that this would have made any difference in the
outcome of the case given the fact that Mother chose to not show up for many of her visitations.
Given our Legislature’s clear directive regarding expediting contested parental
termination proceedings, the fact that we are unable to review Mother’s motion for continuance to
determine what specific grounds were raised in the motion, and Mother’s admission in her brief that
her current counsel had forty-five business days prior to trial to prepare, we are unable to conclude
that the Juvenile Court abused its discretion when it denied Mother a continuance.
Next, we consider whether the Juvenile Court erred in admitting the permanency
plans. Mother argues in her brief on appeal that it was error to admit the two permanency plans,
which Mother did not sign, because they constituted hearsay as Mother “did not make the statement,
manifest an adoption of the statement, authorize anyone to make the statement for her or any of the
other exceptions under [Tenn. R. Evid. 803].” The First Perm Plan was ratified by the Juvenile
Court in September of 2006 and was admitted at trial during the testimony of Ms. Hite, the DCS case
manager who prepared the First Perm Plan. Mother did not object to the introduction of the First
Perm Plan.
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As this Court stated in Grandstaff v. Hawks,
Objections to the introduction of evidence must be timely and specific.
***
A party who invites or waives error, or who fails to take reasonable steps to
cure an error, is not entitled to relief on appeal. Failure to object [to] evidence in a
timely and specific fashion precludes taking issue on appeal with the admission of
the evidence.
Grandstaff v. Hawks, 36 S.W.3d 482, 488 (Tenn. Ct. App. 2000) (citations omitted).
As Mother raised no objection at trial to the introduction of the First Perm Plan, Mother is precluded
from raising this issue on appeal.
The Second Perm Plan was introduced during the testimony of Ms. Slocum. Mother
raised an objection based upon hearsay at trial to the introduction of the Second Perm Plan. The
Juvenile Court admitted the Second Perm Plan stating it was doing so “because it was ratified in
Court, and it was the Plan for the child….” Our review of the record on appeal reveals that the
Second Perm Plan was substantially similar to the First Perm Plan, which was introduced without
objection, particularly with regard to the actions and responsibilities expected of Mother.
As this Court stated in Delapp v. Pratt:
Issues regarding admission of evidence in Tennessee are reviewed for abuse of
discretion. Dickey v. McCord, 63 S.W.3d 714, 723 (Tenn. Ct. App. 2001). “[T]rial
courts are accorded a wide degree of latitude in their determination of whether to
admit or exclude evidence, even if such evidence would be relevant.” Id. Our
Supreme Court discussed the abuse of discretion standard in Eldridge v. Eldridge,
stating:
Under the abuse of discretion standard, a trial court’s ruling
“will be upheld so long as reasonable minds can disagree as to [the]
propriety of the decision made.” A trial court abuses its discretion
only when it “applie[s] an incorrect legal standard, or reache[s] a
decision which is against logic or reasoning that cause[s] an injustice
to the party complaining.” The abuse of discretion standard does not
permit the appellate court to substitute its judgment for that of the
trial court.
Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (citations omitted).
Appellate courts ordinarily permit discretionary decisions to stand when
reasonable judicial minds can differ concerning their soundness. Overstreet v.
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Shoney’s, Inc., 4 S.W.3d 694, 709 (Tenn. Ct. App. 1999). A trial court’s
discretionary decision must take into account applicable law and be consistent with
the facts before the court. Id. When reviewing a discretionary decision by the trial
court, the “appellate courts should begin with the presumption that the decision is
correct and should review the evidence in the light most favorable to the decision.”
Id.
Delapp v. Pratt, 152 S.W.3d 530, 538 (Tenn. Ct. App. 2004).
As the Second Perm Plan was substantially the same as the First Perm Plan, which
was admitted without objection, we find no abuse of discretion in the admission of the Second Perm
Plan. Additionally, we are unconvinced that either of the permanency plans qualifies as hearsay
under Rule 801(c) of the Tennessee Rules of Evidence. While Mother refused to sign both of the
permanency plans, they are similar to a contract, and as such were not offered to prove the truth of
the matter asserted in them but rather solely to set out the terms of the plan itself. We find no error
in the Juvenile Court’s admission of the First Perm Plan or the Second Perm Plan.
We next address whether the Juvenile Court erred in finding that clear and convincing
evidence existed to terminate Mother’s parental rights for abandonment. In pertinent part, Tenn.
Code Ann. § 36-1-113(g)(1) provides:
(g) Initiation of termination of parental or guardianship rights may be based upon any
of the following grounds:
(1) Abandonment by the parent or guardian, as defined in § 36-1-102, has occurred;
Tenn. Code Ann. § 36-1-113(g)(1) (2005). As pertinent to this issue, Tenn. Code Ann. § 36-1-102
provides:
(1)(A) For purposes of terminating the parental or guardian rights of parent(s) or
guardian(s) of a child to that child in order to make that child available for adoption,
“abandonment” means that:
***
(iv) A parent or guardian is incarcerated at the time of the institution of an action or
proceeding to declare a child to be an abandoned child, or the parent or guardian has
been incarcerated during all or part of the four (4) months immediately preceding the
institution of such action or proceeding, and either has willfully failed to visit or has
willfully failed to support or has willfully failed to make reasonable payments toward
the support of the child for four (4) consecutive months immediately preceding such
parent’s or guardian’s incarceration, or the parent or guardian has engaged in conduct
prior to incarceration that exhibits a wanton disregard for the welfare of the child;….
Tenn. Code Ann. § 36-1-102 (1)(A) (2005).
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With regard to this issue, the Juvenile Court found and held that clear and convincing
evidence existed:
that given [Mother’s] lifestyle and conduct prior to her most recent incarceration, that
she exhibited a wanton disregard for the welfare of her child, given the fact she’s had
nineteen prior incarcerations prior to the most recent one. Furthermore, that she had
a drug addiction, which she has admitted to the psychological examiner, which is a
wanton disregard for the welfare of her child, and she admitted that her mother was
essentially taking care and raising her child.
The evidence does not preponderate against the Juvenile Court’s findings that clear and convincing
evidence existed to terminate Mother’s parental rights under Tenn. Code Ann. § 36-1-113(g)(1).
Next, we address whether the Juvenile Court erred in finding that clear and
convincing evidence existed to terminate Mother’s parental rights for failure to substantially comply
with the permanency plan. As pertinent to this issue, Tenn. Code Ann. § 36-1-113(g)(2) provides
that parental rights may be terminated upon clear and convincing evidence that: “There has been
substantial noncompliance by the parent or guardian with the statement of responsibilities in a
permanency plan or a plan of care pursuant to the provisions of title 37, chapter 2, part 4.…” Tenn.
Code Ann. § 36-1-113(g)(2) (2005).
With regard to this issue, the Juvenile Court found and held that clear and convincing
evidence existed that:
the Department has met the clear and convincing burden of proof of the grounds for
substantial noncompliance, by [Mother], with the responsibilities in the Permanency
Plan. The Permanency [P]lan was adopted by this Court in September of 2006 and
which [Mother] received a copy. Even though she refused to sign it on advice of
counsel, she did receive a copy of it, knew that it required her to do certain things,
and she failed to do those things. She was to complete an Alcohol and Drug
Assessment and follow the recommendations. She was to complete a rehab program
and participate in aftercare by attending AA or NA meetings. She didn’t complete
a rehab program and there’s no evidence that she attended any AA or NA meetings.
She did not, and there’s been no testimony that she submitted to counseling at the
Mental Health Center. There’s been no testimony that she had resolved her legal
issues, and actually after this Permanency Plan was put into effect she added to her
legal issues with further incarcerations. I further find that under the Permanency Plan
she [was] required to obtain and maintain employment. She was not able to do that.
She was working for this Mr. Landers, but there has been no proof of what her actual
pay was or pay stubs or bank account records. And further, she did not complete the
parenting assessment, and she was out of jail for a period of five months, and during
that time she only visited her child five times. And so there was really no effort
being put forth by [Mother] to substantially comply with or even comply at all with
the Permanency Plan, and the Court finds that there was ample evidence presented
to prove that she substantially failed to comply with the Permanency Plan.
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Mother argues, in part, that DCS failed to make reasonable efforts to assist her. As
this Court stated in State of Tennessee, Department of Children’s Services v. S.M.D.:
The State “must make reasonable efforts to preserve a family before seeking
to terminate parental rights.” In re: Jeremy D. and Nathan D., No. 01-A-01-9510-
JV-00479, 1996 Tenn. App. LEXIS 292, at **7-8, 1996 WL 257495, at *3 (Tenn. Ct.
App. May 17, 1996), no appl. perm. appeal filed. However, “[r]eunification of a
family is a two-way street, and the law does not require DCS to carry the entire
burden of this goal.” In re: R.C.V. and O.V., No. W2001-02102-COA-R3-JV, 2002
Tenn. App. LEXIS 811, at *39, 2002 WL 31730899, at *11 (Tenn. Ct. App. Nov. 18,
2002), no. appl. perm. appeal filed.
State of Tennessee, Department of Children’s Services v. S.M.D., 200 S.W.3d 184, 197-98 (Tenn.
Ct. App. 2006).
The evidence in the record on appeal shows that Mother failed to follow through with
the recommendations of the psychological assessment, failed to attend AA or NA meetings, failed
to obtain a job even though she had obtained employment in the past and clearly knew how to do
so, failed to exercise the majority of the visitations offered to her, failed to keep in touch with DCS,
and continued to engage in illegal activities. DCS was not required to carry the entire burden of
attempting to reunite Mother with the Child, and it was hampered in this respect as Mother was
incarcerated much of the time due to Mother’s own illegal actions. The evidence shows that Mother
made little effort to carry her portion of the burden toward reunification. Both case managers
testified that Mother had not substantially complied with the permanency plan, and Mother admitted
at trial that she had not really tried to complete the permanency plan stating:
I thought my mama was going to get her back anyway. That’s the whole reason I
really didn’t - - I mean, I did what I had to do but I didn’t really try, try as hard as I
could, because I thought Mama was getting her back. Mama told me she was getting
her back. Mama had done everything she was supposed to get her back so I thought
she was getting her back.
By order entered August 1, 2006, the Juvenile Court found that reasonable efforts
were being made to prevent the Child’s removal from the home. By order entered September 14,
2007, the Juvenile Court found that DCS had made reasonable efforts to reunite the Child with
Mother. In its Order Terminating Parental Rights entered June 19, 2008, the Juvenile Court
implicitly found that DCS made reasonable efforts to assist Mother. The evidence does not
preponderate against these findings.
The evidence does not preponderate against the Juvenile Court’s findings that clear
and convincing evidence existed to terminate Mother’s parental rights for failure to substantially
comply with the permanency plan.
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We next address whether the Juvenile Court erred in finding that clear and convincing
evidence existed to terminate Mother’s parental rights on the ground of persistent conditions. In
pertinent part, Tenn. Code Ann. § 36-1-113(g)(3) provides that parental rights may be terminated
if clear and convincing evidence exists that:
(3)(A) 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:
(i) 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;
(ii) 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
(iii) The continuation of the parent or guardian and child relationship greatly
diminished the child’s chances of early integration into a safe, stable and permanent
home.
Tenn. Code Ann. § 36-1-113(g)(3) (2005).
With regard to this issue, the Juvenile Court found and held that clear and convincing
evidence existed that:
At the time this child was removed by the Department of Children’s Services, the
grandmother, who was the custodian of the child at the time, was in jail. The
mother…was in jail, and an aunt, who had just physical custody of the child, did not
have legal custody, was arrested for a DUI forth offense. And so there was a valid
basis for the child to be placed in the care and custody of the Department of
Children’s Services.
The conditions which led to that removal still exist, and there’s been no
evidence that they’ve been remedied, and given the fact that the mother is still in jail,
there is little likelihood the conditions would be remedied at an early date. The Court
believes, even upon her release in late June of 2008, that it would take [Mother] at
least a year to work a Permanency Plan (and the Court believes she would not be
successful) and that would just mean that the child would be in custody for another
twelve months, which would put her at almost 32 months being in custody of foster
care. And the Court finds that that’s unreasonable and is not in the best interest of
the child.
The Court also finds that the continuation of a parent/child relationship
between [Mother] and [the Child] would greatly diminish the child’s chances of early
integration into a safe, stable and permanent home. Based upon the testimony of all
those involved, the child’s current placement is in her best interest. It is a stable and
safe and permanent home, and the foster parents are willing to adopt. So the Court
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finds that by clear and convincing evidence grounds exist for termination of
[Mother’s] rights based upon the persistent (sic) of conditions….
The evidence does not preponderate against the Juvenile Court’s findings that clear and convincing
evidence existed to terminate Mother’s parental rights on the ground of persistent conditions.
Finally, we address whether the Juvenile Court erred in finding that it was in the
Child’s best interest for Mother’s parental rights to be terminated. The Juvenile Court found and
held that clear and convincing evidence existed that:
it would not be safe at this time for the child to be returned to the mother or her
home. The Court finds that the mother has failed to make an adjustment in her life,
a lasting adjustment at this time to allow for reunification. The Court finds that a
change at this time of the caretakers of this child would have a detrimental,
emotional, psychological effect upon the child because she is attached to her foster
parents. The Court has no doubt that this child loves her grandmother and loves her
mother, but that the child has found a safe and stable home, and the Court believes
that’s in the child’s best interest.
***
Furthermore, the home where the child would be, if in the custody of the
mother, is not an appropriate home. Based upon prior history, there’s been criminal
activity around the child when she’s been in the custody of the mother, given her
drug use and other problems that have led to her incarceration. So the Court finds
that by clear and convincing evidence that it is in the best interest of the child that the
parental rights of [Mother] be terminated.
Mother admitted at trial that throughout the Child’s life, “my mama always had
custody because I was in and out because I was on drugs and I couldn’t, I was just, I was pretty
much, I would go to my mom’s to spend time with [the Child] and leave.” Mother also stated at
trial, “all I ask, is for visitation with [the Child]. I know I probably couldn’t give her what they can
give her. I know they can give her more, more than I can. The only thing I ask of the Court
whatsoever is that I can get visitation with her.” Mother’s actions and words demonstrate that she
wants her parental rights as to the Child, but no parental responsibilities.
The evidence does not preponderate against the Juvenile Court’s findings that clear
and convincing evidence existed that it was in the Child’s best interest for Mother’s parental rights
to be terminated.
As grounds for termination were proven by clear and convincing evidence and clear
and convincing evidence was presented that the termination of Mother’s parental rights was in the
best interest of the Child, we affirm the termination of Mother’s parental rights to the Child.
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Conclusion
The judgment of the Juvenile Court terminating Mother’s parental rights to the Child
is affirmed, and this cause is remanded to the Juvenile Court for collection of the costs below. The
costs on appeal are assessed against the Appellant, V.N. and her surety, if any.
___________________________________
D. MICHAEL SWINEY, JUDGE
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