IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
October 29, 2004 Session
STATE OF TENNESSEE, DEPARTMENT
OF CHILDREN'S SERVICES v. C.D.W.
Appeal from the Juvenile Court for Hamblen County
Nos. 10570, 12847, 13084 Mindy Norton Seals, Judge
No. E2004-00623-COA-R3-PT - FILED JANUARY 11, 2005
This appeal involves the Juvenile Court’s termination of the parental rights of C.D.W. (“Mother”)
to her three oldest children. After a trial, the Juvenile Court held there was clear and convincing
evidence that Mother had failed to substantially comply with the terms of her permanency plans, and
that the conditions present at the time the children were removed had not been remedied and it was
unlikely these conditions would be remedied in the near future. The Juvenile Court also held there
was clear and convincing evidence that termination of Mother’s parental rights was in the children’s
best interest. We affirm the judgment of the Juvenile Court.
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
CHARLES D. SUSANO , JR., J., joined.
J. Eric Harrison, Morristown, Tennessee, for the Appellant C.D.W.
Paul G. Summers, Attorney General and Reporter, and Mary S. Foust, Assistant Attorney General,
Nashville, Tennessee, for the Appellee State of Tennessee, Department of Children’s Services.
OPINION
Background
This is an appeal from the Juvenile Court’s termination of Mother’s parental rights
to three of her children, who are currently ages eight, six, and two. This litigation began in 1997
when the oldest child was less than one year old. At that time, DCS filed a petition for temporary
custody claiming Mother was refusing to cooperate in obtaining necessary medical treatment of the
child after the child fell out of bed and was hospitalized due to a concussion. DCS also alleged
Mother was refusing other assistance which was necessary to enable her to care properly for the
child. The Juvenile Court granted the petition and the child was placed temporarily in DCS custody.
Soon thereafter, a hearing was conducted after which the Juvenile Court concluded that Mother
lacked basic parenting skills but the child would be returned to Mother with certain safeguards
established. Mother was instructed to begin parenting classes within seven days and to undergo a
psychological evaluation within thirty days and to follow all recommendations made by the
psychologist. Approximately one month later, DCS filed a second petition for temporary custody
claiming Mother had failed to enroll in parenting classes or otherwise comply with the previous court
order and there was an imminent threat of harm based on the current living conditions. The Juvenile
Court granted the petition and once again placed temporary custody of the child with DCS.
A permanency plan was developed in September of 1997 with the stated goal of
returning custody of the child to Mother. In the plan, Mother was instructed to ensure the child
received regular medical care and to follow-up with any recommended medical treatment. Mother
also was directed to complete parenting and anger management classes, undergo an alcohol and drug
assessment, and to have a psychological examination. Mother signed the plan which later was
approved by the Juvenile Court.
A hearing was held in May of 1998 to review Mother’s progress and the continuing
need for her child to be in foster care. After the hearing, the Juvenile Court concluded that the child
was to remain in foster care because: (1) Mother had not obtained a psychological evaluation; (2)
Mother had obtained housing only one week before the hearing; and (3) Mother needed to pursue
further anger management counseling. There were several other hearings in 1998 and after each
hearing the Juvenile Court concluded the best interests of the child dictated that the child remain in
foster care. Mother also was instructed on various occasions what needed to be done to allow the
child to be returned safely to her care.
The child’s maternal grandfather eventually petitioned the Juvenile Court for custody
of the child. In April of 1999, the Juvenile Court entered an order relieving DCS of custody and
placing custody of the child jointly with Mother and the child’s grandfather. Mother also was
instructed to continue with counseling. By this time, Mother’s second child had been born.
The case apparently became inactive once custody of the oldest child was placed
jointly with Mother and the child’s grandfather, at least until October of 2001 when DCS filed a
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petition seeking temporary custody of both of Mother’s children. In this petition, DCS claimed the
children were dependent and neglected for numerous reasons, including Mother leaving the children
unsupervised while she slept and the youngest child setting the microwave oven on fire while
attempting to cook something to eat when Mother was asleep. DCS also claimed that a case worker
had made a recent home visit and found Mother asleep and the unsupervised children playing with
Mother’s prescription medication. DCS also claimed to have received numerous referrals “regarding
the minor children playing outside naked without supervision while the mother is asleep.” The
Juvenile Court granted the petition and, upon Mother’s request, appointed counsel to represent
Mother.
New permanency plans were developed to assist Mother so that the children could
be returned safely to her care. Mother was instructed to undergo counseling and attend parenting
classes. Mother also was required to have a psychological evaluation, address her anger management
issues, and follow up on any recommendations made by the psychologist. A permanency plan was
developed with regard to each of the two children and the plans were approved by the Juvenile
Court.
In January of 2002, the Juvenile Court reviewed the status of Mother’s compliance
with the permanency plans and whether there was a continued need for the children to be in foster
care. The Juvenile Court concluded that Mother was only in partial compliance with the terms of
the plans. Mother was attending therapy sessions and was improving her parenting skills.
Notwithstanding these positive improvements, the Juvenile Court noted that Mother had recently
been evicted from her residence and the birth of Mother’s third child was imminent. Mother also
had not completed anger management counseling. Accordingly, the Juvenile Court concluded that
the children should remain in foster care.
Mother gave birth to her third child in February of 2002. By July, DCS had filed a
petition seeking temporary custody of the five month old child. According to the petition, the police
were called to the residence of a Mr. Bryant (“Bryant”) in the early morning hours of July 14, 2002.
The call to the police involved a domestic disturbance between Mother and Bryant, who was the
father of Mother’s third child. Mother was administered a field sobriety test, which she failed.
Before the police arrived, Mother allegedly was demanding that Bryant have sex with her. The
youngest child was with Mother when the police arrived at the scene. The Juvenile Court granted
DCS’s petition, thereby resulting in all three of Mother’s children being in DCS protective custody.
Another permanency plan was developed for Mother after DCS obtained custody of
her youngest child. This new plan contained many of the requirements of the previous plans, but
also required Mother to undergo an alcohol and drug assessment and participate in any suggested
treatment. Mother was required to refrain from using alcohol or drugs in the presence of the
children. In February of 2003, new permanency plans also were developed for Mother with respect
to her other two children who remained in DCS custody. Among other things, Mother was instructed
to participate in an after-care program and to refrain from using alcohol or drugs in the presence of
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the children. Mother was required to obtain safe and adequate housing for the children and to pay
the rent on time.
In April of 2003, DCS filed a petition seeking to terminate Mother’s parental rights
to all three of her children.1 In this petition, DCS alleged, among other things, that: 1) the children
had been removed from the home for at least six months and the conditions which led to their
removal persisted; 2) there was little likelihood that these conditions would be remedied at an early
date which would permit a safe return of the children to Mother; 3) Mother was unable to provide
a suitable home for the children; and 4) continuation of the parent/child relationship would greatly
diminish the children’s chances of early integration into a safe, stable and permanent home. DCS
also alleged there had not been substantial compliance by Mother with the terms of the permanency
plans. Finally, DCS alleged it would be in the best interests of the children for Mother’s parental
rights to be terminated.
The trial was on January 20, 2004, with Mother being called as the first witness.
Mother testified that in addition to the three children who are the subject of the present litigation, she
had one other child who then was approximately six months old. Mother also testified she was one
month pregnant with her fifth child.2 Mother was living with a Mr. Alonso (“Alonso”). Mother
testified that she believed Alonso was the father of her unborn child, but she admitted recently
informing DCS that the father also could be a Mr. Acosta (“Acosta”). According to Mother, she
stopped seeing Acosta because he was physically abusive to her. Mother admitted to having recently
posed as the wife of a friend of Acosta’s in order to help that friend make bail. Mother stated she
did this because “he was a friend and if I was in there he would do the same thing for me,” i.e., lie
for her. When asked the friend’s last name, Mother stated she did not know and she “don’t never
pay attention to last names unless I’m with them.”
Mother testified that her rent money has been stolen from her on three different
occasions. Mother receives a monthly disability check from the Social Security Administration in
the amount of approximately $540. Mother currently lives in an apartment and has been there for
six months. Mother stated she had “no clue” where she lived before that because she moved too
much. Mother acknowledged living in a hotel on two occasions and at the Serenity Shelter for
several months. Mother had been taking medication for depression as well as sleeping pills but quit
taking that medication once she became pregnant with her fifth child. Mother also had been taking
hydrocodone for back pain and admitted selling some of the hydrocodone to a neighbor to get the
neighbor “out of my hair.” Mother further admitted telling DCS in November of 2003 that she could
not pass a drug test because a friend had given her a hydrocodone pill.
1
W ith regard to the three children at issue in this case, Mother did not know the identity of the oldest child’s
biological father. The other two children had different fathers and DCS indicated it would pursue termination of their
parental rights in separate petitions, which are not at issue on this appeal.
2
By the time of trial, DCS had obtained temporary custody of Mother’s fourth child.
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Mother testified that when the father of her fourth child, Mr. Rivera (“Rivera”), told
her that he did not want to have anything to do with the child, Mother “smacked” him. However,
Mother never intended on having a relationship with Rivera such that they would raise their child
together. The reason for this was because Rivera had two other children. Mother made a conscious
decision to get pregnant with her fourth child because she “wanted another baby.”
Mother was questioned about the incident referenced above which occurred
immediately prior to her third child being removed from her custody. Mother admitted having an
argument with Bryant and that she had been drinking alcohol. Mother denied having her third child
with her while she was drinking. Mother also admitted to a previous incident where she knocked
out one of the headlights on Bryant’s car because “he cheated on me and gave me something, and
I had to take medication to get rid of it.”
When asked why her three oldest children had been removed from her custody,
Mother stated that “[t]echnically, I don’t really know why any of them was removed to be honest
with you. I really have no clue. All they say is neglect, but they don’t explain what kind of neglect.”
Mother then admitted she should have been with her second child and not in the shower when he
caught the microwave on fire.
Mother admitted that on September 24, 2002, she was convicted of assaulting Karen
Brown. Mother claimed, however, that she was acting in self-defense and the only reason she was
convicted was because Ms. Brown “beat me to the courthouse.”3 Mother does not have a valid
driver’s license and received a citation in August of 2003 for driving without a license. Mother also
described an incident where her stepmother had canceled one of Mother’s visits with the oldest child.
Mother became angry because she and her father had told the stepmother not to cancel the visitation.
According to Mother, “I tried to hit her, yeah, I did, because she made me angry. She’s gotten – she
has a habit of running that little mouth of hers.”
Mother currently lives in a two bedroom apartment. There are two beds in one of the
bedrooms where the two oldest children would stay if custody was returned to Mother. There are
beds for Mother and the two youngest children in the other bedroom. Mother testified that the DCS
case worker told her the apartment was acceptable. Mother receives a social security disability check
every month, but does not know why she receives the check. She does, however, have back
problems which makes it difficult for her to work but which would not prevent her taking care of the
children. Mother stated she was attending therapy regularly and was not drinking alcohol. Mother
has an aunt and a neighbor she can rely upon for transportation until she is able to obtain her driver’s
license. Mother stated she had missed only one scheduled visit with her children and that was
because the transportation she had arranged “never showed up.” Mother did not complete the
3
According to Ms. Brown’s affidavit filed in the assault litigation, Mother was mad and beat a remote against
the wall and then broke a bathroom mirror. Ms. Brown claims Mother then cut her with a razor. Mother was charged
with aggravated assault, but pled nolo contendere to the lesser charge of assault. M other received a sentence of eleven
months and twenty-nine days and was released on time served.
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aftercare requirements because of pregnancy complications with her fourth child. Mother claimed
she did all the things required of her by the permanency plans that were within her power to
accomplish.
The next witness was Heather Brush (“Brush”), a clinician at Cherokee Health
Systems. Brush began counseling Mother in August of 2003, although Mother had been receiving
counseling at Cherokee Health Systems since 2001. Mother cancelled her first appointment with
Brush due to the birth of Mother’s fourth child. Mother missed the next appointment but did show
up for the third appointment. Mother did not keep the appointment scheduled in September of 2003,
but she attended the appointment in November. At the November appointment, Mother told Brush
that she had not been attending counseling regularly because she was “stressed.” Mother also missed
three scheduled appointments in December and January. According to Brush, Mother’s attendance
at counseling with the previous counselor was sporadic with Mother having attended counseling
“about every three months.” Some of the therapists’ notes from Cherokee Health Systems were
admitted into evidence. According to these notes, Mother told the therapist on April 29, 2002, that
she had been “snitched on” for drinking alcohol and “smoking a little pot.”
Brush testified that Mother was diagnosed as having a “mood disorder, not otherwise
specified, alcohol abuse, sustain full remission and borderline personality disorder.” The primary
focus in the counseling sessions between Brush and Mother were Mother’s parenting issues. Mother
attended a total of six counseling sessions during 2003, but it was possible that Mother was not able
to attend sessions during May and June of that year because she was in the process of being assigned
a new therapist. Because Brush had counseled Mother on only three occasions, she was not able to
give an opinion on Mother’s ability to take care of her children. Brush stated that Mother’s housing
situation had stabilized as had her monetary situation.
Debbie Wideman (“Wideman”) also testified at trial. Wideman met Mother a few
years ago and allowed Mother to live with her on two different occasions. Wideman testified that
when Mother was living with her and while Mother was pregnant with her fourth child, Mother
drank alcohol to the point of intoxication. According to Wideman, on one occasion Mother fell
down the stairs and on another she fell in the bathtub while intoxicated. Wideman stated that she
and Mother had a “falling out” when Wideman learned Mother had given Wideman’s fifteen year
old son some muscle relaxers.
Amanda Willox-Giles (“Giles”) works for Child and Family Tennessee which, among
other things, offers various services to adults who need assistance with their parenting skills. Giles
began working with Mother in October of 2002 and continued assisting her until late February of
2003. Giles testified that she “worked with her on transportation. I assisted her with getting
appointments such as her psychological evaluation” and with completing parenting classes. While
Giles was working with Mother, Mother lost her housing. Giles encouraged Mother to obtain new
housing but Mother waited until three days before she had to vacate the premises before starting to
look for a new place to live. According to Giles, Mother did not make much of an effort. Giles
attempted to get Mother to sign up for a program that would assist Mother with paying her bills, but
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Mother refused because she knew how to handle a checking account. When asked if Mother
implemented what she was taught in parenting classes, Giles stated it was sporadic and Mother was
not able to keep the children under control on a consistent basis. Giles acknowledged that there was
a bond between Mother and her children. When asked about Mother’s overall progress, Giles stated:
I think [Mother’s] progress is very slow. It always seemed to
me that she would make a little bit of progress and then something
would happen, and it would set her back again.… [I]t didn’t seem like
she was consistently able to manage her own lifestyle even without
the children being in her home. … [I]t was always somebody else’s
fault. It didn’t seem like she would take responsibility for losing her
money or doing things like that. There was always an excuse.
Giles recalled one occasion when Mother stated she did not have 50 cents to buy a paper to look for
housing. Giles “reminded her that she always managed to have money for cigarettes or to stop and
buy a pop if she needed one.” Giles tried to get Mother to attend, at no cost to Mother, a nutrition
class which involved “budgeting skills, nutrition education, things like that….” Giles agreed to
arrange for Mother’s transportation to and from the class. Mother refused to take the class because
it was not court ordered and was not part of the permanency plan. Based on the events which took
place while Giles was working with Mother, Giles expressed her concern over Mother’s ability to
maintain stable housing and a stable income in order to take care of her children.
Barbara Prewitt (“Prewitt”), a case manager with DCS, also testified at trial. One of
Prewitt’s duties is to work with parents and children with the goal of reunification. In June of 2002,
Prewitt was assigned the cases involving Mother’s two oldest children, and Prewitt received the case
involving the third child one month later. Prewitt discussed her most recent contact with Mother.
During this conversation, Mother informed Prewitt that she was pregnant again and that a friend and
the friend’s two children were staying with Mother. Mother told Prewitt that she and the father of
her fourth child recently had been in an altercation where they hit each other. Mother also told
Prewitt she had sold hydrocodone pills to a neighbor for five dollars a piece.
Prewitt stated that Mother has difficulty dealing with all three children at once.
According to Prewitt, Mother is not self-supporting and is given money from boyfriends for food and
to pay the rent. Prewitt testified that she is aware of nine different places where Mother has lived
since January of 2003, and Mother is consistently late with rent and utility payments. Prewitt
acknowledged that Mother had completed many of the requirements of the permanency plans, but
nevertheless, “a lot has not changed.” Mother did pass one drug test, but told Prewitt on another
occasion that she could not pass a drug test because a boyfriend had given her a hydrocodone pill.
Even though Mother has lived in her apartment for six months, Prewitt testified that overall, Mother
has not exhibited stability in housing or money matters, impulse control, or anger management.
Prewitt also noted that Mother owes the Hamblen County courts approximately $2,000 for “having
to be moved out of homes when she didn’t pay the rent, for petitions, order of protection, court
cost[s], and for the traffic tickets and just various things….” Prewitt stated that all three of Mother’s
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oldest children are in the same foster home and their foster care placement will remain the same if
Mother’s parental rights are terminated. Prewitt described the children as doing “very well” with
their foster parents.
The Juvenile Court issued thorough and considered findings of fact after the trial.
The Juvenile Court discussed in detail the pleadings in this case as well as the trial testimony which,
for purposes of brevity, we will not restate. The only other testimony needing mention is that of
Alice Garland, M.S. (“Garland”), who has been a psychological examiner for seventeen years. The
Juvenile Court summarized Garland’s testimony as follows:
Alice Gardner … stated that mother’s IQ is in the borderline
range, her judgment is very poor, she uses denial and rationalization,
has a borderline personality disorder, is struggling to keep herself
together and would need intensive and ongoing case management
intervention until her children were raised.
After reviewing the facts and the requirements of the permanency plans, the Juvenile
Court concluded that the conditions leading to the removal of the three children at issue in this case
still persisted and that Mother had failed to substantially comply with the terms of the permanency
plans. According to the Juvenile Court:
The conditions which existed at the placement of the three children
into state custody still exist: mother has a temper, mother is
impulsive, mother continues to become pregnant, mother was
homeless for eight months during 2003, mother has not continued in
her aftercare for her substance abuse and most telling, mother only
attended six counseling sessions during 2003. Psychological
examiner Alice Garland testified that mother would need extensive
and intensive case management during the children’s minority if
mother had control of the children. Mother cannot even take care of
herself when she has no children in her care.…
When this matter was tried, the latest permanency plan was
the one of April 3, 2003. Mother has substantially failed to comply
with the following: continue to participate in aftercare at New Hope,
do not use alcohol or drugs, obtain safe, adequate housing within
thirty days, pay bills in full when due, continue counseling at CHS,
and maintain stability in housing, money matters, decision making,
impulse control and anger management….
Mother chose to not attend aftercare even after the birth [of
her fourth child]. Her excuse for not attending previously was that
her pregnancy with [the fourth child] was a difficult one. … She was
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consistent during 2002, yet she became intoxicated during July 2002,
went to her boyfriend’s home, and committed an act of violence. [The
third child] was then removed. She became intoxicated again in July,
2003 while pregnant with [the fourth child]. She took hydrocodone
that was not prescribed for her during 2003 … and sold hydrocodone
to a neighbor.
Mother’s counseling was sporadic during 2003 – she attended
only six sessions. Mother has an uncontrollable temper as evidenced
by her assault conviction in 2002 and her admission of an altercation
in 2003 with her step-mother. … She has been homeless for most of
2003 because she has not managed her finances.… She refused to go
to a nutritional seminar that was offered free and with free
transportation.… Mother does not even comprehend, she says, why
her children are not in her care. She testified, “I think I did a dang
good job for me being a single mother.”
After making these factual findings, the Juvenile Court concluded that DCS had
proven by clear and convincing evidence that Mother’s parental rights should be terminated for her
failure to substantially comply with the terms of her permanency plan and because the conditions
which led to the removal of the children continued to persist. The Juvenile Court also concluded that
there was clear and convincing evidence that termination of Mother’s parental rights was in the best
interest of the children.
Mother appeals claiming there was no clear and convincing evidence to support
terminating her parental rights on either of the two grounds relied upon by the Juvenile Court.
Mother also claims there was no clear and convincing evidence to support a finding that termination
of her parental rights was in the best interest of the children.
Discussion
The factual findings of the Juvenile Court are accorded a presumption of correctness,
and we will not overturn those factual findings unless the evidence preponderates against them. See
Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). With respect to legal
issues, our review is conducted “under a pure de novo standard of review, according no deference
to the conclusions of law made by the lower courts.” Southern Constructors, Inc. v. Loudon County
Bd. Of Educ., 58 S.W.3d 706, 710 (Tenn. 2001). In In re Adoption of T.A.M., No. M2003-02247-
COA-R3-PT, 2004 Tenn. App. LEXIS 317 (Tenn. Ct. App. May 12, 2004), no appl perm appeal
filed, this Court observed that:
Because of the heightened burden of proof required by Tenn.
Code Ann. § 36-1-113(c), we must adapt Tenn. R. App. P. 13(d)'s
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customary standard of review for cases of this sort. First, we must
review the trial court's specific findings of fact de novo in accordance
with Tenn. R. App. P. 13(d). Thus, each of the trial court's specific
factual findings will be presumed to be correct unless the evidence
preponderates otherwise. Second, we must 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
grounds for terminating the biological parent's parental rights. Jones
v. Garrett, 92 S.W.3d at 838; In re Valentine, 79 S.W.3d at 546; Ray
v. Ray, 83 S.W.3d at 733; In re L.S.W., 2001 Tenn. App. LEXIS 659,
No. M2000-01935-COA-R3-JV, 2001 WL 1013079, at *5 (Tenn. Ct.
App. Sept. 6, 2001), perm. app. denied (Tenn. Dec. 27, 2001).
In re Adoption of T.A.M., 2004 Tenn. App. LEXIS 317, at ** 8-9 (footnote omitted).
In Dep't of Children's Servs. v. D.G.S.L., this Court discussed the relevant burden of
proof in cases involving termination of parental rights. Specifically, we observed:
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
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).…
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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.
Termination of parental rights may be based upon a number of statutory grounds. The
statutory provisions relied upon by the Juvenile Court in the present case provide that parental rights
can be terminated for the following reasons:
(2) 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;
(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 which led to the child's removal or other
conditions which in all reasonable probability would cause the child
to be subjected to further abuse or neglect and which, 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 diminishes the child's chances of early integration
into a safe, stable and permanent home.
Tenn. Code Ann. §§ 36-1-113(g)(2) and (g)(3) (Supp. 2004). The Juvenile Court found there was
clear and convincing evidence that the statutory grounds for termination in Tenn. Code Ann.
§§ 36-1-113(g)(2) and (g)(3) had been met. Clear and convincing evidence supporting any single
ground will support a termination order. See In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
We first will discuss whether the Juvenile Court erred when it concluded there was
clear and convincing evidence that Mother had not substantially complied with the terms of the most
recent permanency plans. The testimony at trial by Mother and DCS representatives was to the effect
that Mother had completed classes and evaluations that were required of her. For example, Mother
completed the alcohol and drug assessment and a treatment program. However, the plan also
required Mother to participate in an aftercare program, which she did not do. The plan clearly
required Mother to stay alcohol and drug free, which she also did not do. With regard to Mother’s
housing situation, Mother was required by the plan to obtain adequate housing within thirty days and
to pay her rent on time. This she did not do as evidenced by the fact that she was living in homeless
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shelters after the thirty days had passed. To her credit, by the time of trial Mother had an apartment
where she had lived for six months, but based on Mother’s substantial housing problems in the past,
a factual issue was presented as to whether Mother has demonstrated an actual ability to provide
proper housing for the children. The plan also required Mother to continue counseling, but she only
attended six sessions in 2003.
Mother’s permanency plans did require that she attend parenting classes, treatment
programs and the like. All of these requirements were in place to achieve one ultimate goal: for
Mother to provide a safe and stable environment to properly raise her children. In fact, the
permanency plan listed as an expected goal that Mother “will have a suitable home life for her
children. [Mother] will demonstrate that she can provide a stable home life for her children by
maintaining stability in her own life and complying with this plan of care until permanency is
achieved.” It makes no difference how many parenting classes are completed if the parent is
incapable or unwilling to learn anything from the classes and adjust his or her behavior accordingly.
While we believe Mother did complete many of the physical requirements of the plan by attending
parenting classes and the like, she did not accomplish any of the goals of the plan. In addition, as
noted above there were several important specific requirements of the plan that Mother did not
comply with, such as staying drug and alcohol free. The evidence does not preponderate against the
factual findings of the Juvenile Court. We further conclude that the facts as found by the Juvenile
Court are such that we cannot conclude the Juvenile Court erred when it held there was clear and
convincing evidence that Mother had failed to substantially comply with the terms of the permanency
plan.
The next issue is whether there was clear and convincing evidence to terminate
Mother’s parental rights in accordance with Tenn. Code Ann. § 36-1-113(g)(3), supra. The Juvenile
Court found that the children had been removed from the home for more than six months, which they
clearly had, and (1) that the conditions which led to their removal or other conditions which in all
probability would cause the children to be subjected to further neglect still existed; (2) there was
little likelihood that these conditions would be remedied at an early date so that the children could
be safely returned to Mother; and (3) continuation of the parent and child relationship greatly
diminished the children’s chances of early integration into a safe, stable, and permanent home.
When considering the record as a whole, we cannot say that the Juvenile Court erred when it
concluded there was clear and convincing evidence to terminate Mother’s parental rights pursuant
to Tenn. Code Ann. § 36-1-113(g)(3). The Juvenile Court’s judgment on this issue is, therefore,
affirmed.
Having affirmed the Juvenile Court’s conclusion that grounds existed pursuant to
§§ 36-1-113(g)(2) and (g)(3), we now turn to whether termination of Mother’s parental rights was
in the best interest of the children. Tenn. Code Ann. § 36-1-113(i) describes the standard for
determining whether termination is in the best interests of the child in such cases:
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(i) In determining whether termination of parental or guardianship
rights is in the best interest of the child pursuant to this part, the court
shall consider, but is not limited to, the following:
(1) Whether the parent or guardian has made such an
adjustment of circumstance, conduct, or conditions as to make it safe
and in the child's best interest to be in the home of the parent or
guardian;
(2) Whether the parent or guardian has failed to effect a
lasting adjustment after reasonable efforts by available social services
agencies for such duration of time that lasting adjustment does not
reasonably appear possible;
(3) Whether the parent or guardian has maintained regular
visitation or other contact with the child;
(4) Whether a meaningful relationship has otherwise been
established between the parent or guardian and the child;
(5) The effect a change of caretakers and physical
environment is likely to have on the child's emotional, psychological
and medical condition;
(6) Whether the parent or guardian, or other person residing
with the parent or guardian, has shown brutality, physical, sexual,
emotional or psychological abuse, or neglect toward the child, or
another child or adult in the family or household;
(7) Whether the physical environment of the parent's or
guardian's home is healthy and safe, whether there is criminal activity
in the home, or whether there is such use of alcohol or controlled
substances as may render the parent or guardian consistently unable
to care for the child in a safe and stable manner;
(8) Whether the parent's or guardian's mental and/or
emotional status would be detrimental to the child or prevent the
parent or guardian from effectively providing safe and stable care and
supervision for the child; or
(9) Whether the parent or guardian has paid child support
consistent with the child support guidelines promulgated by the
department pursuant to § 36-5-101.
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Tenn. Code Ann. § 36-1-113(i) (Supp. 2004).
Since the best interest determination requires a separate analysis, the existence of
grounds to terminate parental rights does not automatically mean that termination of parental rights
is in the best interest of the child. See, e.g., In re D.I.S., No. W2000-00061-COA-R3-CV, 2001
Tenn. App. LEXIS 358 (Tenn. Ct. App. May 17, 2001), no appl. perm. appeal filed. We do not
believe Mother has made an adjustment of circumstances or conditions such that it would be safe
for the children to be returned to her. DCS clearly has made a reasonable effort to assist Mother, but
Mother has failed to make a lasting adjustment. After considering all relevant statutory factors in
light of the evidence presented at trial, we do not believe the Juvenile Court committed reversible
error when it concluded that clear and convincing evidence established it was in the best interest of
the children to terminate Mother’s parental rights.
Conclusion
The judgment of the Juvenile Court is affirmed and this cause is remanded to the
Juvenile Court for collection of the costs below. Costs on appeal are assessed against the Appellant
C.D.W. and her surety, if any.
____________________________________
D. MICHAEL SWINEY, JUDGE
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