IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs December 6, 2013
IN RE KALIYAH S. ET AL.
Appeal from the Juvenile Court for Bradley County
No. J-08-435 Daniel Swafford, Judge
No. E2013-01352-COA-R3-PT-FILED-FEBRUARY 28, 2014
This is a termination of parental rights case, focusing on Kaliyah S. and Jaya P. (“the
Children”), the minor children of Kayla S. (“Mother”). In November 2010, the Children
were taken into protective custody by the Tennessee Department of Children’s Services
(“DCS”) and placed in foster care. DCS filed a petition to terminate the parental rights of
Mother and Jaya’s father, Josh P., on November 30, 2010. The petition alleged severe child
abuse as the sole ground for termination. DCS filed an amended petition in May 2011, which
also named Kaliyah’s father, Rontez L. (“Father”), and alleged that his parental rights should
be terminated on the statutory ground of abandonment by wanton disregard. Father was
incarcerated at the time the amended petition was filed. Following a bench trial, the trial
court granted the petition as to Mother and Josh P. upon finding that DCS had proven the
ground of severe child abuse by clear and convincing evidence. The court also found clear
and convincing evidence that Father had abandoned Kaliyah by engaging in conduct
exhibiting wanton disregard for her welfare prior to his incarceration. When making its
ruling, the trial court concluded that DCS was not required to make reasonable efforts to
assist Father in reunification because DCS sufficiently proved the statutory ground of
abandonment alleged against him. The court also found that termination of the parental rights
of all three respondents was in the Children’s best interest. Father has appealed. We reverse
the trial court’s determination that DCS was relieved of the requirement of making
reasonable efforts of reunification with regard to Father and remand for further proceedings.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Reversed; Case Remanded
T HOMAS R. F RIERSON, II, J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., P.J., joined. D. M ICHAEL S WINEY, J., filed a separate dissenting opinion.
Wilton Marble, Cleveland, Tennessee, for the appellant, Rontez L.
Robert E. Cooper, Jr., Attorney General and Reporter, and Leslie Curry, Assistant Attorney
General, Nashville, Tennessee, for the appellee, Tennessee Department of Children’s
Services.
OPINION
I. Factual and Procedural Background
Mother is a parent of two minor children who are the focus of this proceeding:
Kaliyah S., now age four, and Jaya P., now age two. The Children were removed from the
home of Mother and Josh P., father of Jaya. At the time, DCS apparently believed that Josh
P. was also Kaliyah’s father because his name was listed on her birth certificate. Upon
discovering Kaliyah’s true paternity, the assigned DCS caseworker located and met with
Father while he was incarcerated in the Bradley County Jail. DCS prepared a permanency
plan for Father during his incarceration. Father agreed to sign the plan. DCS then filed its
amended petition in May 2011, seeking to terminate Father’s parental rights on the statutory
ground of abandonment by wanton disregard.
Father was released from custody on November 29, 2011, less than one week before
the termination of parental rights trial began. Father testified at the hearing regarding his
criminal record of drug and domestic violence charges as well as his prior incarcerations.
Father explained that he first saw Kaliyah four or five months after her 2008 birth. He was
then incarcerated from February 2009 until August 2009. Subsequent to his release, Father
saw Kaliyah with some degree of frequency until he was re-incarcerated in February 2010.
According to Father, he was released from custody again in July 2010 but did not see Kaliyah
as frequently thereafter. Father was arrested again in December 2010, remaining
incarcerated until November 2011.
Significantly, the trial court concluded that DCS was not required to make reasonable
efforts to assist Father regarding reunification with the child because the statutory ground
of abandonment by wanton disregard had been proven. The court specifically found clear
and convincing evidence that Father had abandoned Kaliyah by engaging in conduct
exhibiting wanton disregard for her welfare prior to his incarceration and that termination
was in Kaliyah’s best interest. The trial court accordingly terminated Father’s parental rights.
Father timely appealed to this Court.
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II. Issues Presented
Father presents the following issues for our review, which we have restated slightly:
1. Whether the trial court erred by finding that DCS was not required to
make reasonable efforts to reunify Father with his child, Kaliyah S.,
prior to terminating his parental rights.
2. Whether DCS made reasonable efforts to reunify Father with his child prior to
terminating his parental rights.
III. Standard of Review
In a termination of parental rights case, this Court has a duty 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). The
trial court’s findings of fact are reviewed de novo upon the record, accompanied by a
presumption of correctness unless the evidence preponderates against those findings. Id.;
Tenn. R. App. P. 13(d). Questions of law, however, are reviewed de novo with no
presumption of correctness. In re Bernard T., 319 S.W.3d 586, 597 (Tenn. 2010). The trial
court’s determinations regarding witness credibility are entitled to great weight on appeal and
shall not be disturbed absent clear and convincing evidence to the contrary. See Jones v.
Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).
“Parents have a fundamental constitutional interest in the care and custody of their
children under both the United States and Tennessee constitutions.” Keisling v. Keisling, 92
S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that “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.” In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct.
App. 1988) (citing Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599
(1982)). As our Supreme Court has instructed:
In light of the constitutional dimension of the rights at stake in a termination
proceeding under Tenn. Code Ann. § 36–1–113, the persons seeking to
terminate these rights must prove all the elements of their case by clear and
convincing evidence. Tenn. Code Ann. § 36–1–113(c); In re Adoption of
A.M.H., 215 S.W.3d at 808–09; In re Valentine, 79 S.W.3d 539, 546 (Tenn.
2002). The purpose of this heightened burden of proof is to minimize the
possibility of erroneous decisions that result in an unwarranted termination of
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or interference with these rights. In re Tiffany B., 228 S.W.3d 148, 155 (Tenn.
Ct. App. 2007); In re M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct. App. 2005).
Clear and convincing evidence enables the fact-finder to form a firm belief or
conviction regarding the truth of the facts, In re Audrey S., 182 S.W.3d 838,
861 (Tenn. Ct. App. 2005), and eliminates any serious or substantial doubt
about the correctness of these factual findings. In re Valentine, 79 S.W.3d at
546; State Dep’t of Children’s Servs. v. Mims (In re N.B.), 285 S.W.3d 435,
447 (Tenn. Ct. App. 2008).
In re Bernard T., 319 S.W.3d at 596.
IV. Requirement of Reasonable Efforts
Father asserts that the trial court erred in its ruling that DCS was relieved of its
responsibility to make reasonable efforts to assist him in matters of family preservation and
reunification. The trial court found that reasonable efforts were not required in this case
because DCS proved the allegations contained in the termination petition that Father had
abandoned Kaliyah by engaging in conduct exhibiting wanton disregard for her welfare prior
to his incarceration. Father contends that this issue has previously been addressed by this
Court in In re B.L.C., No. M2007-01011-COA-R3-PT, 2007 WL 4322068 at *9-10 (Tenn.
Ct. App. Dec. 6, 2007), wherein this Court held that DCS maintained a duty to exercise
reasonable efforts until a court of competent jurisdiction determined that the parent subjected
the child to aggravated circumstances as defined by statute. In support of his argument,
Father posits that because no such finding was made with regard to him until the termination
of parental rights hearing, DCS still had a duty to exercise reasonable efforts to assist him
in reunification. While recognizing the conflicting conclusions previously reached as to this
issue by various panels of this Court, we agree with Father.
A. Applicable Statutory Provisions
Tennessee Code Annotated § 37-1-166 (Supp. 2013) states, in pertinent part:
(g)(1) As used in this section, “reasonable efforts” means the exercise of
reasonable care and diligence by the department to provide services related to
meeting the needs of the child and the family. In determining reasonable
efforts to be made with respect to a child, as described in this subdivision
(g)(1), and in making such reasonable efforts, the child’s health and safety
shall be the paramount concern.
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(2) Except as provided in subdivision (g)(4), reasonable efforts shall be made
to preserve and reunify families:
(A) Prior to the placement of a child in foster care, to prevent or
eliminate the need for removing the child from the child’s home;
and
(B) To make it possible for a child to safely return to the child’s
home.
(3) If continuation of reasonable efforts of the type described in subdivision
(g)(2) is determined to be inconsistent with the permanency plan for the child,
reasonable efforts shall be made to place the child in a timely manner in
accordance with the permanency plan, and to complete whatever steps are
necessary to finalize the permanent placement of the child.
(4) Reasonable efforts of the type described in subdivision (g)(2) shall not be
required to be made with respect to a parent of a child if a court of competent
jurisdiction has determined that:
(A) The parent has subjected the child that is the subject of the
petition or any sibling or half-sibling of the child who is the
subject of the petition or any other child residing temporarily or
permanently in the home to aggravated circumstances as defined
in § 36-1-102;
...
(5) If reasonable efforts of the type described in subdivision (g)(2) are not
made with respect to a child as a result of a determination made by a court of
competent jurisdiction in accordance with subdivision (g)(4):
(A) A permanency hearing shall be held for the child within
thirty (30) days after the determination; and
(B) Reasonable efforts shall be made to place the child in a
timely manner in accordance with the permanency plan, and to
complete whatever steps are necessary to finalize the permanent
placement of the child.
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(Emphasis added.)
Tennessee Code Annotated § 36-1-102(9) (2010) defines “aggravated circumstances”
as “abandonment, abandonment of an infant, aggravated assault, aggravated kidnapping,
especially aggravated kidnapping, aggravated child abuse and neglect, aggravated sexual
exploitation of a minor, especially aggravated sexual exploitation of a minor, aggravated
rape, rape, rape of a child, incest, or severe child abuse, as defined at § 37-1-102.” (emphasis
added). Tennessee Code Annotated § 36-1-102(1)(A) defines “abandonment” as:
(i) For a period of four (4) consecutive months immediately preceding the
filing of a proceeding or pleading to terminate the parental rights of the
parent(s) or guardian(s) of the child who is the subject of the petition for
termination of parental rights or adoption, that the parent(s) or guardian(s)
either have willfully failed to visit or have willfully failed to support or have
willfully failed to make reasonable payments toward the support of the child;
(ii) The child has been removed from the home of the parent(s) or guardian(s)
as the result of a petition filed in the juvenile court in which the child was
found to be a dependent and neglected child, as defined in § 37-1-102, and the
child was placed in the custody of the department or a licensed child-placing
agency, that the juvenile court found, or the court where the termination of
parental rights petition is filed finds, that the department or a licensed
child-placing agency made reasonable efforts to prevent removal of the child
or that the circumstances of the child’s situation prevented reasonable efforts
from being made prior to the child’s removal; and for a period of four (4)
months following the removal, the department or agency has made reasonable
efforts to assist the parent(s) or guardian(s) to establish a suitable home for the
child, but that the parent(s) or guardian(s) have made no reasonable efforts to
provide a suitable home and have demonstrated a lack of concern for the child
to such a degree that it appears unlikely that they will be able to provide a
suitable home for the child at an early date. The efforts of the department or
agency to assist a parent or guardian in establishing a suitable home for the
child may be found to be reasonable if such efforts exceed the efforts of the
parent or guardian toward the same goal, when the parent or guardian is aware
that the child is in the custody of the department;
(iii) A biological or legal father has either willfully failed to visit or willfully
failed to make reasonable payments toward the support of the child’s mother
during the four (4) months immediately preceding the birth of the child;
provided, that in no instance shall a final order terminating the parental rights
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of a parent as determined pursuant to this subdivision (1)(A)(iii) be entered
until at least thirty (30) days have elapsed since the date of the child’s birth;
(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; or
(v) The child, as a newborn infant aged seventy-two (72) hours or less, was
voluntarily left at a facility by such infant’s mother pursuant to § 68-11-255;
and, for a period of thirty (30) days after the date of voluntary delivery, the
mother failed to visit or seek contact with the infant; and, for a period of thirty
(30) days after notice was given under § 36-1-142(e), and no less than ninety
(90) days cumulatively, the mother failed to seek contact with the infant
through the department or to revoke her voluntary delivery of the infant . . .
B. Statutory Interpretation
Our appellate review of the issue presented engages an analysis of proper statutory
interpretation. As our Supreme Court has explained:
Our “primary goal in interpreting statutes is ‘to ascertain and give effect
to the intention and purpose of the legislature.’” Stewart v. State, 33 S.W.3d
785, 791 (Tenn. 2000) (quoting Gleaves v. Checker Cab Transit Corp., 15
S.W.3d 799, 802 (Tenn. 2000)). When the statutory language is unambiguous,
we apply its plain and ordinary meaning. Planned Parenthood of Middle Tenn.
v. Sundquist, 38 S.W.3d 1, 24 (Tenn. 2000). When the statutory language is
ambiguous, we must look to other sources, such as legislative history, to
determine the intent and purpose of the legislature. Id.
Conley v. State, 141 S.W.3d 591, 595 (Tenn. 2004); see also Burke v. Langdon, 190 S.W.3d
660, 662 (Tenn. Ct. App. 2005).
In this instance, the language of the statute is clear and unambiguous. A plain reading
of the statute demonstrates that reasonable efforts to preserve the family are required to be
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exercised by DCS both before the child is removed from a parent and after such removal.
See Tenn. Code Ann. §37-1-166(g)(2). If aggravated circumstances are found to exist due
to, inter alia, abandonment or abuse, DCS can be relieved of its duty to exercise reasonable
efforts toward family reunification. See Tenn. Code Ann. § 36-1-102(9) and § 37-1-
166(g)(4). A court of competent jurisdiction must make a determination that such aggravated
circumstances exist, however, before DCS is relieved of its duty to exercise reasonable
efforts to assist the parent. Id. Once a court makes such a determination, a permanency
hearing must be held within thirty days, and reasonable efforts by DCS to permanently place
the child shall commence. See Tenn. Code Ann. § 37-1-166(g)(5).
C. Relevant Precedent
In In re B.L.C., this Court was confronted with a factual situation similar to the action
at bar, wherein the trial court had concluded that DCS was not required to make reasonable
efforts to assist the mother in reunification because the statutory ground alleged and proven
against her was willful abandonment. See 2007 WL 4322068 at *2. The mother appealed
the trial court’s determination. On behalf of this Court, Judge (now Justice) Lee explained
that although abandonment does constitute an “aggravated circumstance” pursuant to
Tennessee Code Annotated § 37-1-166(g)(4)(A), no prior case had addressed the question
of “exactly when DCS is relieved of its statutory duty to make reasonable efforts.” Id. at *7.
This Court further elucidated:
Under ordinary circumstances, the law governing termination of parental rights
proceedings imposes upon DCS the responsibility to make reasonable efforts
to reunify children and their parents after DCS removes the children from the
parents’ home. In re Tiffany B., 228 S.W.2d 148, 157-58 (Tenn. Ct. App.
2007). This court has discussed and emphasized the importance of DCS’s role
in this regard on numerous occasions, noting that “[i]n many circumstances,
the success of a parent’s remedial efforts is intertwined with the efforts of
[DCS’s] staff to provide assistance and support.” In re C.M.M., No.
M2003-01122-COA-R3-PT, 2004 WL 438326, at *7 (Tenn. Ct. App. M.S.,
filed Mar. 9, 2004); see also In re Giorgianna H., 205 S.W.3d 508, 518 (Tenn.
Ct. App. 2006) (stating “The success of a parent’s remedial efforts generally
depends on the Department’s assistance and support.”); In re J.A.W., No.
M2007-00756-COA-R3-PT, 2007 WL 3332853, at *4 (Tenn. Ct. App. E.S.,
filed Nov. 8, 2007); In re Randall B., No. M2006-00055-COA-R3-PT, 2006
WL 2792158, at *5-6 (Tenn. Ct. App. M.S., filed Sept. 28, 2006). The efforts
required of DCS are reasonable efforts in light of the specific circumstances
presented, not “herculean” efforts. Id.
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The Tennessee General Assembly, however, has relieved DCS of its duty to
provide reasonable efforts to assist parents from whose homes it has removed
their children under certain statutorily defined circumstances, including when
a court of competent jurisdiction has determined, among other things, that a
parent has committed murder, voluntary manslaughter, felony assault,
aggravated or especially aggravated kidnapping, aggravated child abuse,
aggravated or especially aggravated sexual exploitation of a minor, rape,
incest, severe child abuse, or “abandonment,” as defined by Tenn. Code Ann.
§ 36-1-102(1). These circumstances relieving DCS of its responsibilities are
labeled “aggravated circumstances” by the statute, Tenn. Code Ann. §
37-1-166(g), which further provides in relevant part as follows:
(2) Except as provided in subdivision (g)(4), reasonable efforts
shall be made to preserve and reunify families:
(A) Prior to the placement of a child in foster care, to prevent or
eliminate the need for removing the child from the child’s home;
and
(B) To make it possible for a child to safely return to the child’s
home.
(3) If continuation of reasonable efforts of the type described in
subdivision (g)(2) is determined to be inconsistent with the
permanency plan for the child, reasonable efforts shall be made
to place the child in a timely manner in accordance with the
permanency plan, and to complete whatever steps are necessary
to finalize the permanent placement of the child.
(4) Reasonable efforts of the type described in subdivision (g)(2)
shall not be required to be made with respect to a parent of a
child if a court of competent jurisdiction has determined that:
(A) The parent has subjected the child that is the subject of the
petition or any sibling or half-sibling of the child who is the
subject of the petition or any other child residing temporarily or
permanently in the home to aggravated circumstances as defined
in § 36-1-102;
...
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Tennessee Code Annotated § 36-1-102(9) defines “aggravated circumstances”
to mean “abandonment, abandonment of an infant, aggravated assault,
aggravated kidnapping, especially aggravated kidnapping, aggravated child
abuse and neglect, aggravated sexual exploitation of a minor, especially
aggravated sexual exploitation of a minor, aggravated rape, rape, rape of a
child, incest, or severe child abuse, as defined at § 37-1-102.” (emphasis
added). As is seen from the italicized portion of the statute cited above, its
plain language relieves DCS of its responsibility to make reasonable efforts
only if a court of competent jurisdiction has made a determination that
aggravated circumstances exist, along with the other statutory requirements.
The statute does not allow DCS to take the approach of doing nothing on a
parent’s case, providing no assistance, in the hopes that a court will later make
a finding of abandonment that retroactively “forgives” DCS’s lack of efforts,
particularly when, as is the case here, DCS’s failure to make a reasonable
effort arguably was a significant factor in enabling DCS to argue that Mother
abandoned her children.
We believe the most reasonable and natural interpretation of the statute at issue
is that DCS is relieved of its responsibility to make reasonable efforts to assist
in the preservation and reunification of families that the State has decided to
separate at such time that a court of competent jurisdiction makes the required
determination of aggravated circumstances, and not before. Prior to such a
determination, DCS must continue to make reasonable efforts. To hold
otherwise would be to create an unacceptable level of uncertainty among
DCS’s staff members as to whether, and when, they are required to exercise
reasonable efforts, because the answer to that question would not be clear until
a trial court, or possibly an appellate court, rules on the issue of abandonment.
A “wrong guess” on DCS’s part would create an unacceptably long delay in
an area of the law, termination of parental rights, where expediency is of
particular importance. We also make this determination mindful of a parent’s
fundamental constitutional rights in this regard, and the profound, permanent
consequences of an order terminating a person’s parental rights.
In summary, we do not agree with DCS’s argument that it had no duty in this
case to make reasonable efforts to assist Mother from the time it took custody
of the children until DCS filed its termination petition as a result of the trial
court’s much later finding of abandonment. If, in a termination case, DCS
believes it appropriate to be relieved of the responsibilities generally placed
upon it by Tenn. Code Ann. § 37-1-166, it should petition the trial court for a
“determination” described and required by Tenn. Code Ann. § 37-1-166(g)(4).
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Of course, what constitutes “reasonable” efforts on DCS’s part is defined and
determined by the circumstances; in some situations a parent’s conduct may
make relatively minimal efforts “reasonable” under the circumstances. In such
situations, or when DCS concludes that a parent is himself or herself making
no efforts, or that efforts at a reunification attempt will be useless, several
avenues will be available to DCS to obtain the judicial determination required
by the statute. DCS may change the goal in parent’s permanency plan, thereby
triggering judicial review of the change, or DCS may proceed to file a
termination petition. In any event, both the parents and the trial court will be
placed on notice of DCS’s position that it should be relieved of further efforts,
and of the facts and reasons supporting this position. It will further be clear
to all parties involved, by virtue of the trial court's determination, exactly at
what point in time DCS is relieved from making reasonable efforts otherwise
generally required.
Id. at *8-10.
This reasoning has been followed by numerous cases, including a published decision
from the Middle Section of this Court: In re M.O., 173 S.W.3d 13, 21 n.12 (Tenn. Ct. App.
2005), perm. app. denied (Tenn. May 16, 2005) (concluding that DCS could not “take
advantage of the exception in Tenn. Code Ann. § 37-1-166(g)(4)(A)” when the juvenile court
in adjudicating the child dependent and neglected as to the father had stopped short of
finding that the father had committed severe child abuse). See also In re Christopher S., No.
E2012-02349-COA-R3-PT, 2013 WL 5436673 at *14 (Tenn. Ct. App. Sept. 27, 2013)
(concluding that DCS was not required to make reasonable efforts toward reunification as
a result of the juvenile court’s prior ruling of dependency and neglect based on severe child
abuse); In re Steven P.D., No. W2011-02489-COA-R3-PT, 2012 WL 3025151 at *9 (Tenn.
Ct. App. July 25, 2012) (citing In re B.L.C. for the principle that DCS cannot be relieved of
its duty to make reasonable efforts until after a court of competent jurisdiction finds
aggravated circumstances); In re Jada T.L.P., No. E2011-00291-COA-R3-PT, 2011 WL
3654486 at *4 (Tenn. Ct. App. Aug. 19, 2011) (also citing In re B.L.C. for the same
principle); In re Destiny H.A.A.M.M. M., No. E2010-01367-COA-R3-PT, 2011 WL 319409
at *14 (Tenn. Ct. App. Jan. 27, 2011) (“[A] parent is provided due process protection by the
requirement that DCS seek a court determination that one of the circumstances in Tenn. Code
Ann. § 37-1-166(g)(4) exists—if the trial court determines that relieving DCS of reasonable
efforts is unfair, it can refuse to grant such a request.”); In re Keisheal N.E., No. M2009-
02527-COA-R3-PT, 2010 WL 2176104 at *13 (Tenn. Ct. App. May 28, 2010) (citing In re
B.L.C. for the principle that DCS cannot be relieved of its duty to make reasonable efforts
until after a court of competent jurisdiction finds aggravated circumstances); In re A.R., No.
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M2007-00618-COA-R3-PT, 2007 WL 4357837 at *12 (Tenn. Ct. App. Dec. 13, 2007) (also
citing In re B.L.C. for the same conclusion).
DCS urges this Court to affirm the trial court’s ruling that DCS was relieved of
making reasonable efforts in this case because it proved the allegations of the termination
petition that Father abandoned Kaliyah by engaging in conduct exhibiting wanton disregard
for her welfare prior to his incarceration. DCS relies upon a published decision from the
Western Section of this Court in In re Arteria H., 326 S.W.3d 167, 183 (Tenn. Ct. App.
2010), perm. app. denied (Tenn. Oct. 14, 2010), wherein the father’s parental rights were
terminated based upon two statutory grounds: (1) pursuant to Tennessee Code Annotated §
36-1-113(g)(1) and findings that the father was incarcerated at the time of the institution of
the action and that he exhibited wanton disregard for the welfare of Arteria H. during the four
months immediately preceding his incarceration and (2) pursuant to Tennessee Code
Annotated § 36-1-113(g)(6) because the father was sentenced to eleven years of incarceration
and Arteria H. was under the age of eight years at the time he was sentenced. Id. This Court
ruled that these statutory grounds did not require reasonable efforts on the part of DCS or
require a previous finding of dependency and neglect. Id. No specific reference was made
to Tennessee Code Annotated § 37-1-166. Id.
Based upon our review of the specific language of Tennessee Code Annotated § 37-1-
166, we respectfully disagree with the Court’s conclusion reached in In re Arteria H.1 DCS
has a statutory duty to make reasonable efforts to “provide services related to meeting the
needs of the child and the family” in order to “preserve and reunify families” even when the
ground alleged is abandonment. Tenn. Code Ann. § 37-1-166(g)(2); see In re Tiffany B., 228
S.W.3d 148, 160 (Tenn. Ct. App. 2007); Dept. of Children’s Servs. v. Stinson, No. W2006-
00749-COA-R3-PT, 2006 WL 3054604 at *14 (Tenn. Ct. App. Oct. 30, 2006); State v.
Demarr, No. M2002-02603-COA-R3-JV, 2003 WL 21946726 at *12 (Tenn. Ct. App. Aug.
13, 2003). As articulated in In re B.L.C. and its progeny, a determination that aggravated
circumstances exist must be made by a court of competent jurisdiction before DCS can be
relieved of its duty to exercise reasonable efforts toward family preservation and
reunification pursuant to the statute. We find the line of cases following In re B.L.C. to be
in accord with the legislature’s clearly expressed intent regarding DCS’s duty to make
reasonable efforts in cases such as this.2 We note, however, that in light of the constitutional
1
The Western Section’s later decision in In re Steven P.D., 2012 WL 3025151 at *9, noted above,
appears to depart from this holding in In re Arteria H.
2
But see In re Dacia S., No. E2012-01337-COA-R3-PT, 2013 WL 709635 at *9 (Tenn. Ct. App. Feb.
26, 2013); In re Zada M., No. E2010-02207-COA-R3-PT, 2011 WL 1361575 at *5 (Tenn. Ct. App. Apr. 11,
2011); Dept. of Children’s Servs. v. C.D.F., No. E2006-00668-COA-R3-PT, 2006 WL 3431927 at *18 (Tenn.
(continued...)
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dimension of the rights at stake in termination of parental rights actions, the significance of
this issue may sufficiently warrant review by the Tennessee Supreme Court.
Based upon the plain language of Tennessee Code Annotated § 37-1-166(g)(4)(A) and
this Court’s opinion in In re B.L.C., we conclude that the trial court erred in ruling that DCS
did not have to make reasonable efforts to assist Father regarding reunification because DCS
eventually proved, at the termination hearing, the allegation that Father abandoned Kaliyah
by engaging in conduct exhibiting wanton disregard for her welfare prior to his incarceration.
V. Reasonable Efforts by DCS
Father also argues that DCS failed to establish that it exercised reasonable efforts in
this case. We have previously defined such reasonable efforts as:
“the exercise of reasonable care and diligence by the department to provide
services related to meeting the needs of the child and the family.” T.C.A. § 37-
1-166(g)(1) (2005). “Reasonable efforts entail more than simply providing
parents with a list of service providers and sending them on their way. The
Department’s employees must use their superior insight and training to assist
parents with the problems the Department has identified in the permanency
plan, whether the parents ask for assistance or not.” In re C.M.M., 2004 WL
438326, at *7 (citing In re D.D.V., No. M2001-02282-COA-R3-JV, 2002 WL
225891, at *8 (Tenn. Ct. App. Feb.14, 2002)). The Department’s efforts,
however, need not be “Herculean,” and it is important to note that “the
remedial responsibility does not rest solely on the Department’s shoulders.
Parents must also make reasonable efforts to rehabilitate themselves and to
remedy the conditions that required them to be separated from their children.”
Id. (citing In re R.C.V., No. W2001-02102-COA-R3-JV, 2002 WL 31730899,
at *12 (Tenn. Ct. App. Nov.18, 2002)). The State has the burden of proving
by clear and convincing evidence that its efforts at reunification were
reasonable under all of the circumstances. Id. at *8; see T.C.A. § 36-1-113(c)
(2005).
State Dep’t of Children’s Servs. v. Estes, 284 S.W.3d 790, 800-01 (Tenn. Ct. App. 2008).
In this case, the trial court made no findings regarding whether DCS exercised
reasonable efforts to assist Father. See Dorrier v. Dark, 537 S.W.2d 888, 890 (Tenn. 1976)
2
(...continued)
Ct. App. Nov. 29, 2006).
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(“This is a court of appeals and errors, and we are limited in authority to the adjudication of
issues that are presented and decided in the trial courts . . . .”). We must, therefore, remand
this case for further hearing to afford DCS the opportunity either to present proof that
reasonable efforts were exercised or to petition for a determination that prior to seeking
termination, DCS was relieved of making reasonable efforts to assist Father. See In re
B.L.C., 2007 WL 4322068 at *10.
VI. Conclusion
The judgment of the trial court terminating the parental rights of Father is reversed.
Costs on appeal are taxed to the Department of Children’s Services. This case is remanded
to the trial court, pursuant to applicable law, for further proceedings consistent with this
opinion and collection of costs.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
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