IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned On Brief July20, 2004
IN THE MATTER OF: S.R.C.
Direct Appeal from the Juvenile Court for Gibson County
No. JC-17,952 Larry Logan, Judge
No. W2004-00238-COA-R3-PT - Filed August 16, 2004
The trial court terminated Mother’s parental rights. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY M. KIRBY , J., joined.
Jason C. Scott, Trenton, Tennessee, for the Appellant, M.C.
Paul G. Summers, Attorney General and Reporter, and Juan G. Villasenor, Assistant Attorney
General, for the Appellee, State of Tennessee, Department of Children’s Services.
OPINION
This is a termination of parental rights case. In May 2003, the Department of Children’s
Services (“DCS”) filed a petition in Gibson County Juvenile Court to terminate the parental rights
of M.C. (“Mother”) to S.R.C., born May 16, 2001. In its petition, DCS also named as respondents
alleged fathers S.C.S. and S.D.W. The trial court dismissed S.D.W. upon motion of DCS, and
S.C.S. entered a waiver of interest in the matter. Thus, Mother was the sole respondent before the
trial court when it heard this matter.
The pertinent facts of this case are undisputed. Mother suffers from paranoid schizophrenia
and bipolar disorder and is “polysubstance” dependant. In addition to abusing drugs, Mother
experiences auditory and visual hallucinations. Mother was incarcerated for public intoxication from
September 5, 2001, until November 16, 2001. In March 2002, Mother left S.R.C. in the care of
Mother’s sister. DCS removed S.R.C. from Mother’s sister after it determined that Mother’s sister
had ingested Xanax and alcohol and was unfit to care for S.R.C. In April 2002, mother entered into
a permanency plan which included providing child care, securing a stable home, securing financial
stability through employment or public assistance, refraining from drug use, seeking drug
counseling, and complying with treatment recommendations for bipolar disorder. Mother continued
to abuse drugs, however, and was incarcerated on several occasions, during which S.R.C. was left
with unfit care-givers.
The trial court awarded DCS temporary custody of S.R.C. in June 2002, after finding S.R.C.
to be dependent and neglected and that removal was in S.R.C.’s best interest. In November 2002,
Mother was admitted to a halfway house to await admission to a drug treatment facility. She refused
to take a drug test, however, and consequently became ineligible to remain at the facility.
In May 2003, DCS filed a petition to terminate Mother’s parental rights and the trial court
heard the matter in October 2003. At the time of trial, Mother was incarcerated. Debra Davenport
(Ms. Davenport), a senior psychological examiner who had evaluated Mother, testified that, in light
of Mother’s mental illness and anti-social traits, it would take several years, if ever, before Mother
could provide a stable environment for S.R.C. Ms. Davenport also testified that Mother had not
complied with medical treatment. The trial court also heard the testimony of Patti Cunningham (Ms.
Cunningham), a DCS case manager, who testified that Mother had made no progress on the
permanency plan and that Mother continued to abuse drugs and alcohol. The trial court found
Mother had not complied with the permanency plan, that Mother is incompetent to provide care for
S.R.C., and that termination of Mother’s parental rights is in the best interest of S.R.C. The trial
court entered its final order terminating Mother’s parental rights on January 5, 2004, and Mother
filed a timely notice of appeal to this Court.
Issues Presented
Mother raises the following issues, as we slightly restate them, for review by this Court:
(1) Whether DCS failed to prove by clear and convincing evidence that
termination of parental rights was in the best interest of S.R.C.;
(2) Whether DCS failed to prove by clear and convincing evidence that it used
reasonable efforts to reunify the mother and child;
(3) Whether DCS failed to prove by clear and convincing evidence that Mother
had failed to comply with the permanency plan where Mother’s dual
diagnosis made compliance impossible.
Standard of Review
We review the determinations of a trial court sitting without a jury de novo upon the record.
Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995). We presume the trial court’s
findings of fact to be correct, unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d).
However, no presumption of correctness attaches to a trial court’s conclusions on issues of law.
Bowden v. Ward, 275 S.W.3d 913, 916 (Tenn. 2000); Tenn. R. App. P. 13(d).
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Tennessee Code Annotated § 36-1-113 governs the termination of parental rights. The code
provides, in pertinent part:
(c) Termination of parental or guardianship rights must be based upon:
(1) A finding by the court by clear and convincing evidence that the grounds
for termination or parental or guardianship rights have been established; and
(2) That termination of the parent’s or guardian’s rights is in the best interests
of the child.
Tenn. Code Ann. § 36-1-113(c)(2001). This section also provides the grounds on which parental
rights may be terminated. The existence of any statutory basis for termination of parental rights will
support the trial court’s decision to terminate those rights. In re C.W.W., N.W.W., Z.W.W., & A.L.W.,
37 S.W.3d 467, 473 (Tenn. Ct. App. 2000).
A court’s determination to terminate parental rights must be supported by clear and
convincing evidence. Id. at 474. The “clear and convincing evidence” standard is more exacting
than the “preponderance of the evidence” standard, although it does not demand the certainty
required by the “beyond a reasonable doubt” standard. Id. To be clear and convincing, the evidence
must eliminate any substantial doubt and produce in the fact-finder’s mind a firm conviction as to
the truth. Id. Insofar as the trial court’s determinations are based on its assessment of witness
credibility, this Court will not reevaluate that assessment absent evidence of clear and convincing
evidence to the contrary. See Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999).
Analysis
The Tennessee Code provides, in pertinent part:
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;
(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
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(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)(1)-(3)(A)(2001).
The trial court specifically did not find willful abandonment or wanton disregard for the child
on the part of Mother. The trial court’s final order is somewhat contradictory, however, regarding
the persistence of conditions leading to the removal of S.R.C. from Mother’s care. Although the trial
court stated it did not find “persistence of conditions,” the trial court also stated, “[t]he Court does
find that the child was placed as a dependent and neglected child in foster care and there has been
a total failure by [Mother] and no reasonable efforts by her to remedy the situation and it is unlikely
she will be able to provide a suitable home.”
Upon review of the entire record in this case, we find overwhelmingly clear and convincing
evidence of grounds for termination of Mother’s parental rights under section 36-1-113(g)(3)(A).
As the trial court noted, Mother entered into two permanency plans in this matter, one in March
2003, and one in December 2003. She had nineteen months to comply with the plans and, although
she was incarcerated for some of that time, she had a substantial amount of time during which she
was not incarcerated and did little, if anything, to remedy her situation. She continued to abuse drugs
and, at the time of trial, remained mentally incompetent to provide care and supervision for S.R.C.
Although we are not insensitive to Mother’s mental illness, the record reflects little effort by
Mother to address her illness or to end her “polysubstance” dependency. Mother has not complied
with any requirements of the permanency plans. S.R.C. has been in DCS custody for well over six
months under a finding of dependency and neglect and the conditions leading to removal of the child
clearly persist. It is unlikely that Mother will be able to provide a suitable home for S.R.C. in the
near future.
Additionally, we agree with DCS that clear and convincing evidence establishes grounds for
termination of Mother’s parental rights under section 36-1-113(g)(8), which provides:
(B) The court may terminate the parental or guardianship rights of that person
if it determines on the basis of clear and convincing evidence that:
(I) The parent or guardian of the child is incompetent to adequately provide
for the further care and supervision of the child because the parent's or guardian's
mental condition is presently so impaired and is so likely to remain so that it is
unlikely that the parent or guardian will be able to assume or resume the care of and
responsibility for the child in the near future, and
(ii) That termination of parental or guardian rights is in the best interest of the
child.
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Tenn. Code Ann. § 36-1-113(g)(8)(B)(2001). Termination of parental rights under this section does
not require a showing of willfulness on the part of the parent. Tenn. Code Ann. § 36-1-
113(8)(C)(2001). Not only does the record support termination based on this section, but, in her
brief to this Court, Mother asserts that her mental health condition makes long-term drug
rehabilitation a “near impossibility.”
We also agree with the trial court that clear and convincing evidence establishes that
termination of Mother’s parental rights is in the best interest of the child under section 36-1-113(I).1
S.R.C. has no meaningful relationship with Mother, and Mother cannot care for S.R.C. Mother
cannot provide a safe, healthy home for S.R.C.; she cannot care for or supervise S.R.C.; Mother’s
continued drug abuse and mental/emotional condition are likely to be detrimental to S.R.C. and make
it unlikely that Mother will be able to care for S.R.C. in the near future, if ever. S.R.C. is in a safe
and stable foster home, however, with a family that intends to adopt the child. Termination of
Mother’s parental rights clearly is in S.R.C.’s best interest.
1
The Tennessee Code provides:
(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) W hether 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) W hether 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) W hether the parent or guardian has maintained regular visitation or other contact with the
child;
(4) W hether 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) W hether 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) W hether the parent or guardian has paid child support consistent with the child support
guidelines promulgated by the department pursuant to § 36-5- 101.
Tenn. Code Ann. § 36-1-113(I)(2001).
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Holding
In light of the foregoing, we affirm the judgment of the trial court. Costs of this appeal are
taxed to Mother, M.C., and her surety, for which execution may issue if necessary.
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DAVID R. FARMER, JUDGE
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