Stokes v. Arnold

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE

FILED
BARRY STOKES and )
PAMELA STOKES, ) February 1, 2000
)
Petitioners/Appellees, ) Appeal No. Cecil Crowson, Jr.
Appellate Court Clerk
) M1998-00749-COA-R3-CV
VS. )
) Dickson Chancery
TORINA ARNOLD, ) No. 4985-97
)
Respondent/Appellant, )
)
RICHARD ARNOLD, JOHNNY )
LYNCH and TENNESSEE )
DEPARTMENT OF CHILDREN’S )
SERVICES, )
)
Defendants. )

APPEALED FROM THE CHANCERY COURT OF DICKSON COUNTY
AT CHARLOTTE, TENNESSEE

THE HONORABLE ALLEN W. WALLACE, CHANCELLOR

ROBERT D. TUKE
1100 Nationsbank Plaza
414 Union Street
Nashville, Tennessee 37219
Attorney for Petitioners/Appellees

CHRISTINE ZELLAR CHURCH
120 Franklin Street
Clarksville, Tennessee 37040
Attorney for Respondent/Appellant

REVERSED AND REMANDED

BEN H. CANTRELL,
PRESIDING JUDGE, M.S.

CONCUR:
KOCH, J.
COTTRELL, J.
OPINION

The Chancery Court for Dickson County terminated a mother’s

parental rights to three young children and allowed the foster parents to proceed

with the adoption of the children. Because we find that the record does not
contain clear and convincing evidence upon which to base the termination of the

mother’s parental rights, we reverse.

I.

The State of Tennessee took protective custody of the three natural

children of Torina Arnold on May 11, 1994, after receiving a referral alleging

that she had threatened to commit suicide and to take her children with her. At

the time, Ms. Arnold was living with her three children and her boyfriend, John

Lynch. The record indicates that Ms. Arnold had been threatened with eviction

and her relationship with Mr. Lynch had been deteriorating. She was

subsequently admitted to the stress ward of Clarksville Memorial Hospital for

several days and her children were placed with foster parents and appellees,

Barry and Pamela Stokes. Ms. Arnold was then diagnosed with schizoaffective

disorder by Dr. Terry Peacher. Ms. Arnold began attending therapy sessions and

taking medication for depression. At the time of placement in foster care, the

oldest child, Rebecca, was three years old, Christian was two years old, and

Johnny was ten weeks old.

Ms. Arnold’s children remained in foster care while she worked

with DCS to fulfill the requirements of her plan of care. The record indicates

that the ultimate goal of DCS throughout the children’s placement in foster care

was reunification. In the first few months after the children were placed in

protective custody, Rebecca was diagnosed with a severe language and speech

impairment, and Christian was diagnosed with a moderate speech and language

impairment. At that time, Ms. Arnold was still involved in a relationship with

Mr. Lynch. Although a 1995 DCS Progress Report indicates that Ms. Arnold

was attending individual and couples counseling and fulfilling her visitation

requirements, Mr. Lynch was not cooperating with the recommendations of DCS.

Ms. Arnold’s visits with the children were unsupervised until February of 1995

when Christian returned from a visit with red marks on his buttocks. However,

-2-
there was no evidence presented that established that Ms. Arnold had inflicted

such marks. At a judicial review held in August of 1995, the juvenile judge

emphasized the need for Ms. Arnold to distance herself from Mr. Lynch if he was

not willing to cooperate with the Plan of Care. In November of 1995, at the

request of DCS, Judge Catalano allowed Ms. Arnold unsupervised visitation with

the children.1

In January of 1996, the Stokes filed a petition to stop all

unsupervised visitation. At a hearing in March of 1996, Judge Catalano

questioned the assessment of the case worker, ordered all visitation to be

supervised, and appointed a new case worker. In Ms. Arnold’s May of 1996 Plan

Of Care, DCS indicates that Ms. Arnold had followed through with all

recommendations, had never missed a visit with her children, was in therapy, and

was compliant in all respects other than her continued contact with Mr. Lynch.

In August of 1996, Ms. Arnold’s Progress Report states that she had completed

various types of counseling, including individual, co-dependent group, couples,

parenting, and family intervention, and had visited with the children almost every

week since they had been in the custody of DCS. In October of 1996, DCS

requested unsupervised visitation. With regard to such request, Judge Catalano

asked for a clarification of Ms. Arnold’s earlier diagnosis of schizoaffective

disorder. After performing a psychiatric evaluation on Ms. Arnold, Dr. Jerry

Holland disagreed with the earlier diagnosis of Dr. Peacher and instead found no

evidence to support a diagnosis of schizoaffective disorder. In addition, Dr.

Sheehan, Ms. Arnold’s psychologist for two years, concurred with Dr. Holland’s

opinion. Dr. Sheehan and Dr. Holland agreed that Ms. Arnold suffers from an

adjustment disorder described as a diagnosis of distress symptoms accompanying

very difficult situations.

1
The evid ence is som ewhat con fusing with regard to the date of the request for unsupervised visitation made
by DCS and the judicial review. A Progress Report dated August 27, 1996 indicates that the request and review
occurred in 1996. However, a reading of the entire record reveals that these events actually occurred in 1995.

-3-
 Although throughout this time period Ms. Arnold had moved

several times and held several jobs, her DCS Progress Report on January 6, 1997

states that she had been highly motivated to reunite her family, had been very

cooperative with DCS, and had been very concerned about her children’s

physical and emotional needs. After a judicial review on February 6, 1997,

Judge Catalano found that Ms. Arnold “has made considerable progress and such

change of circumstances that visitation should be increased and may be

unsupervised with an effort made to return said children to the mother’s home

at the end of the present school term.”

At this point, Ms. Arnold was given weekend visitation with the

children. Donna Page, Ms. Arnold’s case worker at DCS at this time, made

unannounced visits to Ms. Arnold’s home during every weekend visit, and Ms.

Arnold was always there with the children. According to Ms. Page, the home

conditions were adequate and safe. The record indicates that the only problems

Ms. Arnold faced with regard to weekend visitation were transportation of the

children and, on one occasion, money for groceries. However, Ms. Arnold

worked with DCS in managing to find a solution to these problems. In March

of 1997, Ms. Arnold began a relationship with Henry Sykes. A subsequent home

study of Mr. Sykes established his stable work history, ownership of a home,

lack of a criminal record, and lack of a history of alcohol or drug abuse.

Ms. Arnold’s September 9, 1997 Progress Report states that she had

maintained stable employment and a stable residence for over one year, had

continued counseling, and was engaged to Mr. Sykes. She had also started

paying voluntary support payments of $5.00 per month but the record indicates

that she had failed to pay the court ordered amount of $13.66 per month for child

support. The report further indicates that there was an allegation of neglect made

by the foster parents. However, DCS found this allegation to be unfounded. In

March of 1998, Ms. Arnold and Mr. Sykes were married. We note that several

-4-
of Ms. Arnold’s Progress Reports point out the strong bond between Ms. Arnold

and the children and their expressed desire to return home with their mother.

In 1997 the Stokes filed a petition seeking to terminate Ms. Arnold’s

parental rights and to adopt her three children. DCS and Ms. Arnold each

responded to this petition with an Answer asking the court to dismiss the

adoption petition because there was not a sufficient basis upon which to

terminate Ms. Arnold’s parental rights.

On April 2, 1998, a hearing was held to determine whether to

terminate Ms. Arnold’s parental rights and allow the foster parents to proceed

with the adoption of the three children. At the hearing, the trial court heard

testimony from a language pathologist establishing Rebecca and Christian’s

special needs with regard to language and speech therapy. In addition, the court

heard testimony that Ms. Arnold had been evicted from at least two different

residences in 1996. However, Ms. Page, Ms. Arnold’s case worker at DCS,

testified that since she was appointed to the case in March of 1996, Ms. Arnold

had accomplished everything DCS requested and that she knew of no reason why

Ms. Arnold could not parent these children. Dr. Joanne Berryman also testified

at the hearing. Dr. Berryman had observed the children interacting with Ms.

Arnold on several occasions. Dr. Berryman testified that the bond between the

children and Ms. Arnold was very strong and that it would be devastating to the

children if Ms. Arnold’s parental rights were terminated. Dr. Sheehan testified

that in his opinion Ms. Arnold was willing to do what was required in order to

properly raise her children even in light of their special needs. Dr. Sheehan

further testified that Ms. Arnold had made a lot of progress in developing coping

skills for stressful situations with regard to her adjustive disorder. Ms. Arnold

herself testified that she is able to provide for the special needs of the children.

-5-
 Also introduced at the hearing was a report from Dr. William

Kenner. In his report, Dr. Kenner noted that Ms. Arnold had been previously

diagnosed with schizoaffective disorder. After considering several other doctors’

evaluations of Ms. Arnold and conducting one interview with her, Dr. Kenner

concluded that Ms. Arnold would not be able to meet the special needs of the

children. After consideration of all the proof, the trial court found clear and

convincing evidence of the grounds for termination and that termination was in

the best interests of the children.

II.

Our courts have recognized that parents have a fundamental right

to the care, custody, and control of their children. Stanley v. Illinois, 405 U.S.

645, 92 S. Ct. 1208, 31 L. Ed.2d 551 (1972); Hawk v. Hawk, 855 S.W.2d 573,

577 (Tenn. 1993). This right is not absolute and may be surrendered when a

parent abandons the child or engages in acts that pose a threat of substantial harm

to the child. Nale v. Robertson, 871 S.W.2d 674, 678 (Tenn. 1994); O’Daniel

v. Messier, 905 S.W.2d 182, 186 (Tenn. Ct. App. 1995). Due process requires

that the parent’s conduct allowing the state to terminate the parent-child

relationship must be established by clear and convincing evidence. Santosky v.

Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed.2d 599 (1982).

Tenn. Code Ann. § 36-1-113 controls the proceedings for the

termination of parental rights. The parts relevant to the case at bar are:

(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.

Possible grounds for termination of parental rights include the following:

-6-
 (g)(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.

The trial court stated in its final order that the termination of Ms.

Arnold’s parental rights was based upon two separate and independent grounds:

non-compliance with the plan of care, and that the conditions that led to the

removal of the children have persisted and are unlikely to improve. On appeal,

Ms. Arnold contends that these grounds have not been proven by clear and

convincing evidence.

III.

Ms. Arnold contends that the proof adduced at trial did not rise to

the level of substantial non-compliance with the plan of care. We agree.

The Plans of Care in evidence set out various obligations which, for

the most part, were fulfilled. Ms. Arnold visited with her children almost every

week after they entered the foster care program. The proof at trial showed that

Ms. Arnold failed to timely notify DCS of an employment and housing status

change on only two occasions. Ms. Arnold attended court reviews and Foster

-7-
Care Review Board meetings. Although Ms. Arnold did not attend several

doctor appointments made by the foster parents for the children, she did attend

therapy sessions with the children and took them to the doctor when needed

during visitation. Ms. Arnold completed parenting classes, individual counseling

and maintained her medication levels. She obtained a home that was deemed

“adequate and safe” by Ms. Page. In fact, Ms. Arnold’s May 13, 1996 Plan of

Care states that she “has followed through with all recommendations.” Ms.

Arnold was developing a plan with her therapist to use appropriate coping skills

in times of stress. Ms. Arnold maintained employment at a nursing home for

eleven months and had several other jobs during the time the children were in

foster care. Ms. Arnold worked with a DCS homemaker to establish and

maintain a budget. Although Ms. Arnold did not pay the entire amount of child

support ordered by the court, she did make voluntary payments of $5.00 per

month. At trial, Ms. Page testified that since March of 1996, Ms. Arnold had

complied with all requests made by DCS. In light of the foregoing, we find that

the record does not establish by clear and convincing evidence that Ms. Arnold

did not substantially comply with her plan of care.

IV.

Ms. Arnold further contends that the evidence failed to prove, by

clear and convincing evidence, the elements required for termination under Tenn.

Code Ann. § 36-1-113(g)(3).

Ms. Arnold concedes that the children have been removed from her

custody for at least six months. Tenn. Code Ann. § 36-1-113(g)(3)(A). With

regard to the second and third criteria, relating to the conditions leading to the

children’s removal from Ms. Arnold’s custody, the evidence indicates that the

conditions have been somewhat remedied. The children were removed from Ms.

Arnold’s care after she threatened to commit suicide and take the children with

her. The children remained in foster care due to Ms. Arnold’s relationship with

-8-
Mr. Lynch, financial status, mental health, and lack of a stable home

environment. However, since the initial placement of the children, Ms. Arnold

has attended therapy on a consistent basis, attended parenting classes, learned

coping abilities for stressful situations, ended any relationship with Mr. Lynch,

learned budgeting responsibilities, become involved in a stable relationship, and

moved into a house with her husband. In addition, the evidence clearly

demonstrated the strong bond between Ms. Arnold and the children. Given the

foregoing, we cannot conclude that there is clear and convincing evidence that

all of the requirements of Tenn. Code Ann. § 36-1-113(g)(3)(A) have been met.

Although we find the trial court erred in the termination of Ms.

Arnold’s parental rights, we express no opinion as to whether the custody of the

children should be immediately returned to Ms. Arnold. We leave the decision

of custody to the Juvenile Court upon remand of this cause.

V.

Ms. Arnold next contends that the proof showed that she was

indigent and that the trial court erred in denying her petition to proceed in forma

pauperis to compel the release of the transcript of the termination of parental

rights hearing. We note that our review of the trial court’s findings of fact is de

novo with a presumption of correctness unless the evidence preponderates

otherwise. Tenn. R. App. Pro. 13(d). In the case at bar, the record indicates that

at the time of her petition, Ms. Arnold was being supported by her husband and

was willfully unemployed. The evidence does not preponderate against the trial

court’s finding that Ms. Arnold was not indigent. Therefore, denial of her

petition to proceed in forma pauperis was proper.

Ms. Arnold further argues that even if not indigent, the trial court

erred in not allowing her to purchase a copy of the transcript from DCS. Instead,

the court required her to negotiate exclusively with the Stokes. According to a

-9-
statement of evidence submitted by Ms. Arnold’s attorney, the Stokes and DCS

agreed to share in the per diem for the court reporter. Ms. Arnold declined an

offer to share in the per diem. This Court has previously found that the appellate

rules do not require that a party who has assumed the burden of providing a

reporter at trial make available that reporter’s work for a party who did not join

in providing the reporter. Estate of Ruby Lee Nichols, 856 S.W.2d 397 (Tenn.

Ct. App. 1993). In addition

A party who does not join in the engagement and
payment of a stenographer has no contract right to
require the stenographer to transcribe the record which
is therefore unavailable unless and until made
available to him on terms satisfactory to the
stenographer and the party or parties who engaged the
stenographer.

Beef N’ Bird of America, Inc. v. Continental Casualty Co., 803 S.W.2d 234, 240

(Tenn. Ct. App. 1990). Therefore, the Stokes were not required to make a copy

of the transcript available to Ms. Arnold. However, since DCS also agreed to

share in the per diem of the court reporter, DCS had a contract right to a copy of

the transcript. Consequently, DCS had the right to allow Ms. Arnold to negotiate

with the court reporter for a copy of the transcript or to furnish her a copy, if it

chose to do so. We find the trial court erred in ordering Ms. Arnold to negotiate

with the Stokes. We do not hold that she had the right to a free transcript, but

anything she had to pay beyond her share of the per diem and the cost of

transcription would be unreasonable. We remand this cause to the trial court for

a determination of whether the amount Ms. Arnold paid for the transcript was

reasonable.

VI.

Ms. Arnold’s final contention is that she “should have been allowed

to inquire as to the amount of money spent by the foster parents on lawyers,

private investigators, expert witnesses and any other money spent to secure the

adoption of the children.” As we find this determination is totally irrelevant to

the termination of her parental rights, we decline to address this issue.

-10-
 VII.

In their brief, the Stokes assert that they, as foster parents, along

with the children, have a fundamental liberty interest in their existing familial

relationship. However, as stated earlier, in Tennessee it has long been

established that biological parents have a fundamental liberty interest in the care

and custody of their children. Hawk, 855 S.W.2d at 577. In addition, this Court

has previously held that these “parental rights are superior to the rights of others

and continue without interruption unless a biological parent consents to

relinquish them, abandons his or her child, or forfeits his or her parental rights

by some conduct that substantially harms the child.” O’Daniel, 905 S.W.2d at

186. As we have found no grounds upon which to base the termination of Ms.

Arnold’s parental rights, any interest the Stokes or the children might have in

their relationship as a foster family is outweighed by Ms. Arnold’s fundamental

liberty interest in the custody, companionship, and care of her children.

VIII.

The judgment of the trial court is vacated. We remand this cause to

the trial court for further proceedings consistent with this opinion. Costs on

appeal are assessed against appellees, Barry and Pamela Stokes.

BEN H. CANTRELL,
PRESIDING JUDGE, M.S.
CONCUR:

WILLIAM C. KOCH, JR., JUDGE

PATRICIA J. COTTRELL, JUDGE

-11-