State of Tennessee Department of Children's Services v. Patricia Danielle Stinson ( 2006 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
On Briefs September 27, 2006
STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v.
PATRICIA DANIELLE STINSON, ET AL.
A Direct Appeal from the Juvenile Court for McNairy County
No. C-581 The Honorable Danny Smith, Judge
No. W2006-00749-COA-R3-PT - Filed October 30, 2006
This is a termination of parental rights case involving two minor children. The mother of both
children and the father of one of the children appeal separately from the Order of the Juvenile Court
of Hardin County terminating their respective parental rights. Both Appellants assert that the grounds
for termination of their parental rights are not met by clear and convincing evidence in the record,
and that termination of their parental rights is not in the best interest of the minor children. Because
we find clear and convincing evidence in the record to support the trial court's findings, we affirm.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Juvenile Court Affirmed
W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
J. and DAVID R. FARMER , J., joined.
Stephanie L. Prentis of Savannah, Tennessee for Appellant, Jason Henry
Roger Stanfield of Jackson, Tennessee for Appellant, Patricia Stinson
Paul G. Summers, Attorney General and Reporter; Michael B. Leftwich, Assistant Attorney General
for Appellee, Tennessee Department of Children's Services
OPINION
C.S.L.S. was born on November 22, 2000 to Patricia Danielle Stinson. At the time of
C.S.L.S.’s birth, Ms. Stinson was married to Stephen L. Stinson and Mr. Stinson was listed as the
father on C.S.L.S.’s birth certificate. However, DNA testing revealed that Jason Henry (together
with Ms. Stinson, “Appellants”) was the biological father of C.S.L.S. The trial court entered an
order on July 28, 2003 finding Mr. Henry to be the biological father of C.S.L.S.
T.D.S. (together with C.S.L.S., the “Children”) was born on April 20, 2002 to Ms. Stinson.
Although Ms. Stinson was married to Mr. Stinson at that time, Mr. Stinson surrendered his parental
rights to T.D.S. on January 27, 2003. Ms. Stinson later revealed Larry Turner to be the father.
However, DNA testing proved that Mr. Turner was not T.D.S.’s father and Mr. Turner was
dismissed from this case on March 10, 2005. In its Order of March 10, 2005, the trial court found,
in accordance with T.C.A. §§ 36-1-113 and 36-1-117 that there was no one else to be named as a
defendant in this case as there were no other legal parents to be named, and no other biological or
putative parents to be served.
The Children were taken into the custody of the State of Tennessee, Department of
Children’s Services (“DCS,” or “Appellee”) on or about August 27, 2002. On or about August 30,
2002, DCS filed a petition for temporary custody of the Children. The petition alleges that, at the
time they were taken into custody, the Children had been in the care of one of Ms. Stinson’s friends.
The DCS petition indicates that both Children had diaper rash, head lice, and were very dirty.
T.D.S., who was four months old at that time, had what appeared to be a healing cigarette burn.
C.S.L.S. also had circular marks on his body. Ms. Stinson’s alleged history of drug abuse and her
inability to provide stable housing were also listed as reasons for DCS custody. On August 30, 2002,
the trial court entered a Protective Custody Order. The Children were placed in the foster care of
Mary and Ruben Damron, where they have remained since that time. The foster family wishes to
adopt the Children should this Court affirm termination of Appellants’ parental rights.
A preliminary hearing was held on September 3, 2002. On October 22, 2002, the trial court
entered an Order in which it found, inter alia, that the Children were dependent and neglected. The
trial court granted temporary custody to DCS, and appointed a Guardian ad Litem for the Children.
The Order also indicates that, at the time of the hearing, Mr. Henry was incarcerated. An
adjudicatory hearing was held on May 8, 2003. On July 28, 2003, the trial court entered its “Order
of Adjudication of Dependency and Neglect,” in which the trial court continued temporary custody
of the Children with DCS.
After the Children came into DCS custody, DCS established a permanency plan for each
child. On September 18, 2002, Ms. Stinson agreed to the permanency plans, which had as their
primary goal a return of the children to their parents and an alternate goal of adoption. Under the
plans, Ms. Stinson was assigned a number of responsibilities including resolving all legal and
criminal issues, taking parenting classes, submitting to drug and alcohol counseling, submitting to
drug testing, establishing paternity, and obtaining and maintaining employment. The record
indicates that Ms. Stinson participated in the preparation of these plans.
As briefly discussed above, at the time the Children were taken into protective custody, Ms.
Stinson identified Jason Henry as the father of C.S.L.S., despite the fact that she had previously told
Mr. Henry that he was not the father. Mr. Henry has a history of drug abuse and criminal activity.
Prior to C.S.L.S.’s birth, Mr. Henry was convicted of possession of Schedule II drugs with intent to
sell and two counts of theft over $1,000. Following his conviction, Mr. Henry was initially placed
on probation after serving several months in jail; however, his probation was revoked quickly when
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he violated the conditions of his probation. At the time of the hearing in this case, Mr. Henry was
serving an eight year sentence. He is not scheduled for release until 2007.
By her own testimony, Ms. Stinson began using alcohol and marijuana when she was twelve
years old and starting using cocaine at age fifteen. Ms. Stinson has been arrested numerous times
and, on several occasions, she has spent time in jail on drug and other charges. One incarceration
lasted from October 7 to November 13, 2003, and another began on January 4, 2004.
On or about October 14, 2003, the permanency plans were amended to make adoption the
sole goal because the Children had been in DCS custody for fourteen months and there had been
little progress with Ms. Stinson on completion of her goals and requirements under the original
plans. At that time, there had been a long gap in visitation, due in large part to Ms. Stinson’s
incarceration, and Ms. Stinson had allegedly not met any of the goals of the permanency plans.
Although Ms. Stinson did not participate in the revision of the plans, Mr. Henry’s father was present
and signed the plans. Throughout these proceedings, Mr. Henry’s father has expressed some interest
in custody of C.S.L.S; however, he has only expressed interest in custody of T.D.S. if, by taking
custody of T.D.S., he can gain custody of his biological grandson, C.S.L.S. The permanency plans
were again reviewed in October 2004. At that time, adoption remained the sole goal.
On January 5, 2004, DCS filed a Petition to terminate the parental rights of Ms. Stinson.
This petition also seeks to terminate the parental rights of Mr. Henry as to C.S.L.S. and the parental
rights of Mr. Turner as to T.D.S.1 The Petition reads, in pertinent part, as follows:
Pursuant to T.C.A. 36-1-102(1)(A)(i) and (iv) and 36-1-113(g)(1), the
Department submits that grounds for Termination of Parental Rights
exist based on abandonment by the fathers in that they have rarely if
ever visited or had any contact with the children; they have failed to
support the children in-kind or directly through child support; and
they have failed to establish a suitable home. The fathers, both of
whom are incarcerated, and for 4 months prior to the filing of this
petition, have willfully failed to pay support for four months
immediately preceding the incarceration and have engaged in conduct
prior to incarceration that exhibits a wanton disregard for the welfare
of the children.
* * *
1
As discussed above, Mr. Stinson (who was married to M s. Stinson at the time of T.D.S. birth) surrendered
his rights to the child on January 27, 2003. Although M s. Stinson named Mr. Turner as the biological father of T.D.S.,
he has never legitimated the child. After DNA testing revealed that Mr. Turner was not the father of T.D.S., Mr. Turner
was dismissed from the case on March 10, 2005. He is not a party to this appeal.
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Pursuant to Tennessee Code Annotated section 36-1-113(g)(2), the
Department submits that grounds for Termination of Parental Rights
exist based on substantial noncompliance by parents with the
statement of responsibilities in the Permanency Plan pursuant to the
provision of title 37, chapter 2, part 4.
a) The Permanency Plans, revised, ratified and made an Order of the
Court on September 18, 2002, for these children, contains the
following provisions:
1. That the goals are Return to Parent and Adoption.
2. That the mother will make an appointment with Quinco Mental
Health Center to address domestic violence issues in the home. That
she will resolve all legal/criminal issues with the court and remain
free of criminal activities and behaviors. She was to enroll in the
domestic violence counseling by September 30, 2002 and provide
summaries and a certificate of completion to DCS.
3. That Ms. Stinson would attend and participate in parenting classes
at Quinco to identify safety and supervision issues with the children
and in the home. Monthly summaries and a certificate of completion
were to be delivered by the mother to DCS.
4. Ms. Stinson was to attend and participate in A&D counseling with
Pathways in Jackson. She was to submit to an initial hair screen for
which she was responsible for payment. She was to get random drug
urine screens for six months thereafter for which DCS would pay.
She was to complete the A & D counseling and bring a copy of the
completion to DCS. She was to test negative on all drug screens.
5. Ms. Stinson was to obtain and maintain employment to provide
financially for the children; bring a copy of her paycheck each payday
to DCS and provide the name and number of her employer to DCS
for verification purposes.
6. Ms. Stinson would visit with the children at least 4 hours every 28
days and advise DCS when she had conflicts with her work schedule
or other visitation conflicts.
7. That she participated in the making of the Plan, discussed it and
agreed with it.
* * *
b) The Court found that the mother failed in every respect to comply
with her plan at the hearing on July 28, 2003. She has not been able
to comply since that time, either.
IX
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Pursuant to Tennessee Code Annotated section 36-1-113(g)(3)(A)(i-
iii), the Department submits that grounds for Termination of Parental
Rights exist, because the children...have been removed from the home
of the parents by order of this Court for more than six (6) months, and
the conditions which led to the children’s removal, or other
conditions which in all reasonable probability would cause the
children to be subjected to further abuse or neglect, and which,
therefore, prevent the children’s safe return to the care of the parents,
still persist; and, there is little likelihood that these conditions will be
remedied at an early date so that the children can be safely returned
to the parents in the near future; and, the continuation of the parent
and child relationship greatly diminishes the children’s chances of
early integration into a safe, stable and permanent home.
The Court found in the Preliminary Hearing Order entered on or
about October 22, 2002, that the children were dependent and
neglected by clear and convincing evidence as stipulated to by the
mother because of the following:
That the children had been left with friends of the mother and that the
children’s buttocks were very red and irritated from diaper rash. The
four month old had what appeared to be a cigarette burn in the
process of healing and both children had head lice and were very
dirty. There were circular marks on the [one] year old. The mother
had a history of drug abuse and moved frequently such that DCS
could not locate her for investigation.
Jason Henry stipulated at the time that he was incarcerated and could
not contest the petition. The mother has just been released from
Hardin County Jail where she was incarcerated for 32 days in October
and November this year. She was supposed to go to rehabilitation or
complete a sentence of 11 months, 29 days, but she went to
rehabilitation instead. However, she only lasted two days before she
left. She has not been picked up by law enforcement yet and remains
for the time being with her grandfather.
The mother hardly visited with the children from Easter, 2003 until
November, 2003 although since November she has started to see
them again when the foster mother initiates the visits. The mother
was living in a crack house with 4 men prior to the last incarceration.
She is still using drugs and is not able to care for the children. The
oldest boy has some familiarity with her but the youngest doesn’t
know her.
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When the mother told the 4 year old this past July “To kiss Mommy”,
he kissed the foster mother.
The children have rarely if ever seen their fathers.
The mother did not appear in Court for the adjudicatory hearing on
July 28, 2003 and the court found the children were dependent and
neglected by clear and convincing evidence. The Court found that the
mother was using crack cocaine, living with two men, failing to visit
her children, failing to go to Pathways, failing to appear for drug
screens, failing to communicate with DCS, and without food or
money on occasion.
The Court found that DCS made reasonable efforts including but not
limited to counseling and parenting.
Very little appears to have changed since the time of that court
order.
The mother does not appear to be able to remedy her conditions in the
near future as she has done nothing new since the time the children
have been removed. The fathers, Jason Henry and Larry Turner, are
in prison. The foster parents want to adopt the children and provide
them a safe and loving home. The children are bonded with the foster
parents and see them as their only parents.
* * *
It is in the best interest of said child[ren] and the public that all of the
parental rights of Respondents to said children be forever terminated
and that the complete custody, control and guardianship of said
children be awarded to the State of Tennessee, Department of
Children’s Services, with the right to place said children for adoption
and to consent to said adoptions in loco parentis. Pursuant to
Tennessee Code Annotated section 36-1-113(i)(1-9), the Petitioner
avers that it would be in the best interests of the above-named
children that Respondents’ parental rights be terminated because:
f) Respondents have failed to make an adjustment of circumstance,
conduct, or conditions as to make it safe and in the children’s best
interests to be in the home of the parents; and/or ,
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g) Respondents have 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; and/or,
h) Respondents have failed to maintain regular visitation or other
contact with the children; and/or,
i) Respondents have failed to establish a meaningful relationship
between the parent and children; and/or,
j) The children’s emotional and psychological conditions would be
adversely affected by effecting a change of caretakers; and/or
k) Respondents have failed to maintain a physical environment of the
parent’s home which is healthy and safe, there is criminal activity in
the home, and/or there is use of alcohol or controlled substances as
may render the parent or guardian consistently unable to care for the
children in a safe and stable manner; and/or,
l) Respondents’ mental and/or emotional status would be detrimental
to the children or prevent the Respondent from effectively providing
safe and stable care and supervision for the children; and/or
m) Respondents have not paid child support consistent with the child
support guidelines at any time during the children’s custody in the
Department.
These children barely know their parents. They are doing well in the
foster home and they are thriving. The mother and fathers cannot
provide any home at all for the children. To change caretakers would
be devastating to them. The parents have made no efforts to become
more than biologically related to the children; they have paid no
support and the fathers have sent no gifts. The fathers have been
consistently advised of court proceedings and meetings to discuss the
children and their progress in foster care and have rarely, if ever,
attended. The mother has said on occasion that the foster parents
should adopt the children. She would show true love for them if she
did surrender her rights as she so often stated she would do. She
cannot stay away from cocaine and other drugs in the foreseeable
future. She has to take care of herself first before she can take care
of these children and she has a long way to go before that happens.
DCS has tried to help the mother through various programs such as
parenting and counseling, referrals for A & D counseling and
rehabilitation, but the mother has not been successful.
The trial of this matter took place before the court, sitting without a jury, on March 10,
2005, June 29, 2005, and July 27, 2005. Following a hearing on February 14, 2006, the trial
court entered an Order terminating the parental rights of Ms. Stinson to C.S.L.S. and T.D.S., and
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terminating the parental rights of Mr. Henry to C.S.L.S. In its Order, the trial court summarizes
the evidence adduced at the hearing and makes the following, relevant, findings therefrom:
27. That the children have been in the continuous legal care and
control of the State of Tennessee, Department of Children’s Services,
since on or about August 27, 2002. That the mother stipulated to the
dependency and neglect of the children at the preliminary hearing on
October 22, 2002 and that the children were adjudicated to be
dependent and neglected children by order of the court on July 28,
2003, at which the mother failed to appear.
28. That the mother made no visits with the children from Easter of
2003 until November 2003 and that the few visits between that time
and the filing of the petition to terminate parental rights on January
5, 2004 were initiated by the foster mother taking the children to visit
the mother while she was incarcerated in the McNairy County Jail.
Prior to her entry into the McNairy County Jail, she failed to visit
although she was capable.
29. The children have been in custody more than 6 months,
conditions that caused the children to come into custody persist or
other conditions exist in which in all reasonable probability would
cause the children to be subjected to further abuse or neglect and
which therefore prevent the children’s safe return to the parents.
There is little likelihood that these conditions will be remedied at an
early date and the continuation of the parent and child relationship
greatly diminishes the children’s chances of early integration into a
safe, stable and permanent home. There is nothing to show that the
conditions may change in the foreseeable future.
30. That Jason Henry, the father of [C.S.L.S.], has had only rare if
any contact with his child, that he has failed to provide any support
for the child, has failed to establish a suitable residence for the child
and has no ability to do so in the near future, and he engaged in
conduct consisting of drug use and criminal activity prior to his
incarceration that evidences a wanton disregard for the welfare of his
child. That he had the ability to work, the ability to spend money on
other things, the ability to use drugs, and showed no interest in the
child during that time.
31. That there has been substantial noncompliance by the mother,
Patricia Danielle Stinson, with the permanency plans created for her
by her own admission and the testimony of others at the hearings in
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this cause. The mother did not substantially complete any of the
requirements prior to the filing of the petition to terminate her
parental rights.
32. The children are in an adoptive home where they are well cared
for and are thriving and are doing well in the home and the home is
a stable and loving home.
33. That the Court hereby makes the specific findings that the State
has met its burden of proof by clear and convincing evidence as to
each of the grounds alleged in the petition filed in this cause based
upon the facts testified at each of the hearings in this cause. As to the
ground of abandonment, the father failed to visit for more than four
(4)months prior to his incarceration and engaged in activities prior to
his incarceration which evidenced a wanton disregard for the welfare
of his child, and that each have failed to make any child support
payments since the children have been in state custody. As to the
grounds of failure to substantially comply with her permanency plan,
Patricia Stinson has not taken a part in a staffing in over a year and
has done little if anything to seek return of the child[ren] or
permanency for the child[ren] and that there is no evidence, material
or otherwise, of any attempt at compliance. As to the persistent
conditions and likelihood the conditions will remedy themselves at an
early date, the court hereby finds that because the children have been
removed from the home of the parents by order of this Court for more
than six (6) months and because the conditions which led to the
children’s removal or other conditions which in all reasonable
probability would cause the children to be subjected to further abuse
or neglect and which, therefore, prevent the children’s safe return to
the care of the parents, still persist; and the court hereby finds that
there is little likelihood that these conditions will be remedied at an
early date so that the children can be safely returned to the parents in
the near future; and the court hereby finds that the continuation of the
parent and child relationship greatly diminishes the children’s
chances of early integration into a safe, stable and permanent home
specifically because the children were removed from the mother as
they were not being properly cared for and had been dropped off and
the mother had a history of drug usage and frequently moved; that the
father is presently incarcerated and may be until 2007; mother has
submitted to only one drug screen in 2002 which she failed and has
failed to submit to any more (even one requested this summer after
her release from the Teen Challenge Program) even though each of
her case managers requested that she submit to screens; as Ms.
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Stinson has failed to maintain regular contact with each of her case
managers including the case manager she has now and since her
release from the Teen Challenge Program; and because there is no
evidence, material or otherwise, that she even attempted to complete
her permanency plan prior to the filing of the petition to terminate her
parent rights; therefore, the conditions that caused the children to
come into custody persist and conditions exist which in all reasonable
probability would subject the children to further neglect or abuse and
there is nothing to show that they may change in the foreseeable
future.
34. As to the best interest of the children, the Court makes the
following findings by clear and convincing evidence: that Patricia
Danielle Stinson and Jason Henry have failed to make an adjustment
of circumstance, conduct, or conditions as to make it safe and in the
children’s best interest to be in the home of the parent; that Patricia
Danielle Stinson 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; that Patricia Danielle Stinson and Jason Henry have failed
to maintain regular visitation or other contact with the children; that
a change of caretakers would have a harmful effect on the children’s
emotional, psychological and medical condition; that Patricia
Danielle Stinson and Jason Henry have failed to establish and
maintain a meaningful relationship between themselves and the
children; that Patricia Danielle Stinson and Jason Henry have failed
to maintain a physical/home environment which is healthy and safe;
that there is criminal activity in the home, and/or there is use of
alcohol or contolled substances as may render the parent or guardian
consistently unable to care for the children in a safe and stable
manner; that each of the parent’s mental and/or emotional status
would be detrimental to the child or prevent the mother from
effectively providing safe and stable care and supervision for the
child; and that neither has paid child support consistent with the child
support guidelines at any time during the children’s custody in the
Department.
35. Pursuant to Tennessee Code Annotated section 36-1-113(g),
grounds for Termination of Parental Rights exist based on
abandonment by the mother as defined by law, because of the facts as
above-enumerated.
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36. Pursuant to Tennessee Code Annotated section 36-1-113(g),
grounds for Termination of Parental Rights exist based on
abandonment by the father, as defined by law, because of the facts as
above-enumerated.
37. Pursuant to Tennessee Code Annotated section 36-1-113(g),
grounds for Termination of Parental Rights exist based on substantial
non-compliance with the permanency plan by the mother, as defined
by law, because of the facts as above-enumerated.
38. Pursuant to Tennessee Code Annotated section 36-1-113(g),
grounds for Termination of Parental Rights exist based on persistence
of conditions, as to both parents, as defined by law, because of the
facts as above-enumerated.
39. That the children have been removed from the parent’s home as
a result of a petition filed in the juvenile court in which the children
were found to be dependent and neglected, as defined in TCA 37-1-
102, and placed in DCS custody and that DCS made reasonable
efforts, or would have had the mother participated, to assist the
mother for four months following the removal to establish a suitable
home for the minor children but the mother made no reasonable
efforts and she has demonstrated a lack of concern for the children to
such a degree that it appears unlikely that she will be able to provide
a suitable home for the children at an early date.
40. That the Respondents have willfully abandoned the children for
more than four consecutive months [] preceding the filing of this
petition. Ms. Stinson admitted she has paid no child support and her
visitation prior to the filing of the termination petition was sporadic,
token and at the initiation of the foster parent. Mr. Henry has failed
to establish a relationship with his child and has failed to voluntarily
take the steps to maintain contact with his child, to legitimate his
child and engaged in activities which exhibited a wanton disregard for
his child for the four months prior to his incarceration.
41. It is contrary to the children’s welfare to remain in the legal care,
custody or control of either of the parents based upon the above stated
facts and based upon the facts as found by the Court this date at the
termination hearing.
42. That it is in the best interest of said children and the public that
all of the parental rights of the respondents, Patricia Danielle Stinson
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and Jason Henry, to said children be forever terminated and that the
complete custody, control and full guardianship of said children be
awarded to the State of Tennessee Department of Children’s Services,
with the right to place said children for adoption and to consent to
said adoption in loco parentis;
43. That an Order for Termination of Parental Rights shall have the
effect of forever severing all of the rights, responsibilities and
obligations of the parent to the child and of the child to the parent.
The parent shall have no further right to notice of proceedings for the
adoption of the children by other persons and the parent shall have no
right to object to the children’s adoption or thereafter, at any time, to
have any relationship, legal or otherwise, with the children;
44. That it is in the best interest of the children and the public that all
the parental rights of the Respondents, Jason Henry and Patricia
Danielle Stinson, to [C.S.L.S.] and [T.D.S.], forever be terminated
and that complete custody, control and full guardianship should be
awarded to the State of Tennessee Department of Children’s Services,
with the right to place said children for adoption and to consent to
such adoption in loco parentis.
IT IS, THEREFORE, ORDERED, ADJUDGED, AND
DECREED:
1. That the Petition for the Termination of Parental Rights of Patricia
Danielle Stinson and Jason Henry to said children, [C.S.L.S.] and
[T.D.S.], be and is hereby granted by clear and convincing evidence
upon the findings set forth above and upon the grounds as stated in
the petition filed in this cause.
2. That all of the parental rights of Patricia Danielle Stinson and
Jason Henry to said children be, and the same are, hereby forever
terminated and that said termination is in the children’s best interest.
Mr. Henry and Ms. Stinson filed separate notices of appeal. Mr. Henry raises the
following issues for review as set out in his brief:
I. A. Whether there was clear and convincing evidence to terminate
Appellant’s parental rights on grounds of abandonment when
Appellant was unaware he was the biological father of the child prior
to his incarceration.
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B. Whether there was clear and convincing evidence to terminate
Appellant’s parental rights based on wanton disregard when
Appellant was unaware he was the biological father prior to his
incarceration.
C. Whether there was clear and convincing evidence to terminate
Appellant’s parental rights based on lack of concern when the
Appellant was unaware he was the biological father of the child prior
to his incarceration.
II. Whether there was clear and convincing evidence to terminate
Appellant’s parental rights on the basis of conditions which led to
removal have not been remedied or other conditions prevent return
when Appellant was incarcerated the entire time of the proceedings
and was unaware he was the biological father of the child prior to
incarceration.
III. Whether Appellant’s parental rights can be terminated when Mr.
Henry was never included in any Permanency Plan and was given no
statement of responsibilities to comply with in order to have the child
awarded to him.
IV. Whether there is clear and convincing evidence to terminate
Appellant’s parental right based on mental incompetence when there
was no evidence of Appellant’s mental incompetence at any point
throughout the proceedings.
V. Whether there was clear and convincing evidence that terminating
Appellant’s rights [was] in the best interest of the child.
Ms. Stinson raises the following issues for review as stated in her brief:
I. Whether the trial court’s findings regarding grounds for
termination of Appellant’s parental rights are supported by clear and
convincing evidence.
II. Whether the trial court’s findings that termination of parental
rights of Appellant Patricia Stinson is in the best interest of her
children.
III. Whether the trial court erred in admitting into evidence, over
objection, the case recordings of the Department of Children’s
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Services Caseworkers without regard to the admissibility of the
contents.
Because this case was tried by the court sitting without a jury, we review the case de novo
upon the record with a presumption of correctness of the findings of fact by the trial court. Unless
the evidence preponderates against the findings, we must affirm absent error of law. See Tenn. R.
App. P. 13(d). Furthermore, when the resolution of the issues in a case depends upon the
truthfulness of witnesses, the trial judge who has the opportunity to observe the witnesses in their
manner and demeanor while testifying is in a far better position than this Court to decide those
issues. See McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn.1995); Whitaker v. Whitaker,
957 S.W.2d 834, 837 (Tenn. Ct. App.1997). The weight, faith, and credit to be given to any
witness's testimony lies in the first instance with the trier of fact, and the credibility accorded will
be given great weight by the appellate court. See id.; see also Walton v. Young, 950 S.W.2d 956,
959 (Tenn.1997).
The standard for the termination of parental rights is well settled. The United States
Supreme Court has recognized the important nature of cases involving the termination of
parental rights, stating that “[f]ew consequences of judicial action are so grave as the severance
of natural family ties.” M.L.B. v. S.L.J ., 519 U.S. 102, 119 (1996) (quoting Santosky v. Kramer,
455 U.S. 745 (1982) (Rehnquist, J., dissenting)). Accordingly, “the interest of parents in their
relationship with their children is sufficiently fundamental to come within the finite class of
liberty interests protected by the Fourteenth Amendment.” Id. The constitutional protections of
the parent-child relationship require certain safeguards before the relationship can be severed.
See O'Daniel v. Messier, 905 S.W.2d 182, 186 (Tenn.Ct.App.1995) (rev'd on other grounds); In
re: Swanson, 2 S.W.3d 180 (Tenn .1999)).
As a safeguard, courts are required to apply the heightened “clear and convincing” proof
standard. See Santosky, 455 U.S. at 769; O'Daniel, 905 S.W.2d at 186. To justify the
termination of parental rights, the grounds for termination must be established by clear and
convincing evidence. See T.C.A. § 36-1-113(c)(1) (2005); State Dep't of Human Servs. v.
Defriece, 937 S.W.2d 954, 960 (Tenn.Ct.App.1996). Although it does not require as much
certainty as the “beyond a reasonable doubt” standard, the “clear and convincing evidence”
standard is more exacting than the “preponderance of the evidence” standard. O'Daniel, 905
S.W.2d 182, 188 (Tenn.Ct.App.1995); Brandon v. Wright, 838 S.W.2d 532, 536 (Tenn. Ct.
App.1992). In order to be clear and convincing, evidence must eliminate any serious or
substantial doubt about the correctness of the conclusions to be drawn from the evidence.
Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n. 3 (Tenn.1992); O'Daniel, 905 S.W.2d at
188. Such evidence should produce in the fact-finder's mind a firm belief or conviction as to the
truth of the allegations sought to be established. O'Daniel, 905 S.W .2d at 188; Wiltcher v.
Bradley, 708 S.W .2d 407, 411 (Tenn.Ct.App.1985). In contrast to the preponderance of the
evidence standard, clear and convincing evidence should demonstrate that the truth of the facts
asserted is “highly probable” as opposed to merely “more probable” than not. Lettner v.
Plummer, 559 S.W.2d 785, 787 (Tenn.1977); Goldsmith v. Roberts, 622 S.W.2d 438, 441
(Tenn.Ct.App.1981); Brandon v. Wright, 838 S.W.2d at 536.
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T.C.A. § 36-1-113(c)(2005) governs termination of parental rights and requires that such
termination be based upon:
(1) A finding by the court by clear and convincing evidence that the
grounds for termination of 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.
Here, the trial court terminated the respective parental rights of Mr. Henry and Ms.
Stinson based upon grounds codified at T.C.A. § 36-1-113(g) (2005), which reads, in pertinent
part, as follows:
(g) Initiation of termination of parental or guardianship rights may be
based upon any of the following grounds:
(1) Abandonment by the parent or guardian, as defined in § 36-1-102,
has occured;
(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...
(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;
(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.
Concerning the ground of abandonment, T.C.A. § 36-1-102 (2005) defines that term, in relevant
part, as follows:
(1)(A) For purposes of terminating the parental or guardian rights of
parent(s) or guardian(s) of a child to that child in order to make that
child available for adoption, "abandonment" means that:
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(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;
* * *
(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 of a parent as determined pursuant to
this subdivision (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;
* * *
(D) For purposes of this subdivision (1), "willfully failed to support"
or "willfully failed to make reasonable payments toward such child's
support" means the willful failure, for a period of four (4) consecutive
months, to provide monetary support or the willful failure to provide
more than token payments toward the support of the child;
(E) For purposes of this subdivision (1), "willfully failed to visit"
means the willful failure, for a period of four (4) consecutive months,
to visit or engage in more than token visitation;
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(F) Abandonment may not be repented of by resuming visitation or
support subsequent to the filing of any petition seeking to terminate
parental or guardianship rights or seeking the adoption of a child; and
(G) "Abandonment" and "abandonment of an infant" do not have any
other definition except that which is set forth in this section, it being
the intent of the general assembly to establish the only grounds for
abandonment by statutory definition. Specifically, it shall not be
required that a parent be shown to have evinced a settled purpose to
forego all parental rights and responsibilities in order for a
determination of abandonment to be made. Decisions of any court to
the contrary are hereby legislatively overruled;
T.C.A. § 36-1-113(c) allows for termination of parental rights if any one of the grounds
outlined in T.C.A. § 36-1-113(g) is found by clear and convincing evidence, and termination is in
the best interest of the child.
Grounds for termination of Mr. Henry’s parental rights to C.S.L.S
We will first address whether there is clear and convincing evidence in the record to
support the grounds for termination of Mr. Henry’s parental rights to C.S.L.S. From our reading
of the Order in this case, it appears that the trial court terminated Mr. Henry’s parental rights on
grounds of abandonment, T.C.A. § 36-1-113(g)(1). The trial court based its finding of
abandonment as to Mr. Henry on at least two of the statutory definitions of that term: (1) willful
failure to support and/or willful failure to visit, T.C.A. § 36-1-102(1)(A)(i); and (2) conduct
demonstrating a wanton disregard for the welfare of the child, T.C.A. § 36-1-102(1)(A)(iv). The
trial court also based termination of Mr. Henry’s parental rights on grounds of persistence of
conditions. T.C.A. § 36-1-113(g)(3)(A). We will examine each of these grounds against the
record before us.
The record indicates that Mr. Henry was incarcerated around March of 2000 for
possession of Schedule II drugs with intent to sell and two counts of theft over $1,000. Prior to
his incarceration, Mr. Henry admitted that he had engaged in activities with Ms. Stinson that
could have caused a child to be conceived. While he was incarcerated, Mr. Henry found out that
Ms. Stinson was pregnant with C.S.L.S. He testified that he asked if he was the father and she
told him that he was not. Mr. Henry took Ms. Stinson’s word and made no further inquiries as to
his paternity. However, he testified that he had some doubts as to whether he was the father, to
wit:
Q [to Mr. Henry]. What–at any point, did you still have questions as
to whether or not you were the father of [C.S.L.S.]?
A. I had wondered.
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Q. You still had wondered?
A. No. Because I know he is now mine.
Q. Before the DNA test?
A. It was always in the back of my mind that he could be. And if he
was, I wanted to be there for him.
Mr. Henry was released from jail and placed on probation in November of 2000. Despite his
testimony that he still wondered if C.S.L.S. was his child, Mr. Henry took no steps toward
finding out about his paternity or any steps to establish a relationship with C.S.L.S. during his
probation, to wit:
Q. What about the time that you were on probation? Did you have
discussions at that point of time as to whether or not you were the
father of [C.S.L.S.]?
A. Yes.
* * *
Q. Then, at what time during that time did you try to determine
whether or not you were the father of [C.S.L.S.]?
A. None
Mr. Henry’s probation was short lived and he was arrested in July of 2001 for violation of
probation. He is currently serving an eight years sentence.
Despite the fact that Mr. Henry took no steps to determine his paternity even though he
had some question as to whether he was C.S.L.S.’s father, Mr. Henry knew that he was
C.S.L.S.’s father in December of 2002, when the results of the DNA testing were available. The
record indicates that, since that time until the filing of the petition to terminate his parental rights
in January 2004, Mr. Henry has taken no steps to form a relationship with his son. Although Mr.
Henry could have gotten access to the Damrons’ phone number and could have made calls to
C.S.L.S., he took no action, to wit:
Q. In the penitentiary, are you able to use the telephone to try to call
the child?
A. Yes, ma’am, but they got a list. You got to get the number to put
on your approved list.
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Q. So, you wouldn’t be able to without having that phone number on
your list; correct?
A. I can get it on my list?
* * *
Q. So, what have you done as far as getting his [C.S.L.S.’s] phone
number on your list? You said, that you can make–
A. I don’t even know Mrs. Damron’s number. And I have called
[Ms. Stinson] in the past and talked to him, while he was over there.
Q. Did you not ask [Ms. Stinson] for Mrs. Damron’s phone number?
A. No.
Q. Did you ask [DCS] for Mrs. Damron’s phone number?
A. No.
Q. You have not asked anyone for Mrs. Damron’s phone number?
A. No.
Mr. Henry further testified that he has paid no support for C.S.L.S. and that he has only
seen the child two times (both occasions where Ms. Stinson brought C.S.L.S. to the jail).
Concerning those two visits, Mr. Henry testified as follows:
Q. Would you agree, would you not, Mr. Henry, that two visits of an
hour each is not enough to establish a relationship with him
[C.S.L.S.]? Is that correct?
A. Yes, ma’am.
In fact, the record reveals that neither Mr. Henry nor his family has any bond with C.S.L.S. and
that C.S.L.S. has no real knowledge of his biological father.
In his brief, Mr. Henry seems to indicate that DCS did not make reasonable efforts before
petitioning for termination of his parental rights. Under T.C.A. § 37-1-166(a) (2005), the court is
required to determine whether DCS made “reasonable efforts” for reunification of the family.
T.C.A. § 37-1-166(g)(1) defines “reasonable efforts” as follows:
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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 the child,
as described in this subdivision, and in making such reasonable
efforts, the child's health and safety shall be the paramount concern.
Nevertheless, reunification of a family is a two-way street, and the law does not require
DCS to carry the entire burden of this goal. The record indicates that Mr. Henry received
notification concerning these proceedings and that he had the opportunity to participate. Within
the confines of its own resources and the specific circumstances of this case (i.e. Mr. Henry’s
incarceration), it is the opinion of this Court that DCS has made reasonable efforts in this case.
Unfortunately, Mr. Henry, by virtue of his incarceration and other circumstances, has been
unable to reciprocate in the process of reunification. From the record before us, we conclude that
there is clear and convincing evidence to support the trial court’s finding that Mr. Henry’s
parental rights to C.S.L.S. should be terminated on the grounds of abandonment for willful
failure to support and willful failure to visit during the statutory period. Furthermore, there is
ample evidence in the record to support a finding that Mr. Henry’s activities before incarceration,
during incarceration, and during probation demonstrate a wanton disregard for his own welfare
much less that of the child.
Grounds for termination of Ms. Stinson’s parental rights to C.S.L.S and T.D.S.
In addition to the grounds of abandonment and persistence of conditions, Ms. Stinson’s
parental rights to the Children were also terminated on the grounds of failure to substantially
comply with her responsibilities in the permanency plans, T.C.A. § 36-1-113(g)(2). As discussed
by this Court in In re M.J.B., 140 S.W.3d 643 (Tenn.Ct.App.2004):
Terminating parental rights based on Tenn. Code Ann. §
36-1-113(g)(2) requires more proof than that a parent has not
complied with every jot and tittle of the permanency plan. To succeed
under Tenn.Code Ann. § 36-1-113(g)(2), the Department must
demonstrate first that the requirements of the permanency plan are
reasonable and related to remedying the conditions that caused the
child to be removed from the parent's custody in the first place, In re
Valentine, 79 S.W.3d at 547; In re L.J.C., 124 S.W.3d 609, 621
(Tenn.Ct.App.2003), and second that the parent's noncompliance is
substantial in light of the degree of noncompliance and the
importance of the particular requirement that has not been met. In re
Valentine, 79 S.W.3d at 548-49; In re Z.J.S., 2003 WL 21266854, at
*12. Trivial, minor, or technical deviations from a permanency plan's
requirements will not be deemed to amount to substantial
noncompliance. In re Valentine, 79 S.W.3d at 548; Department of
Children's Servs. v. C.L., No. M2001-02729-COA-R3-JV, 2003 WL
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22037399, at (Tenn.Ct.App.Aug.29, 2003) (No Tenn. R.App. P. 11
application filed).
Id. at 656-57.
Under the permanency plans established in this case, Ms. Stinson was required to attend
parenting classes, to seek drug and alcohol counseling, to submit to drug tests (including a hair-
follicle test), to maintain stable employment, and to resolve all of her criminal issues. The record
supports a finding that these requirements are reasonable and related to remedying the conditions
that caused the Children to be removed from Ms. Stinson’s custody in the first place. The record
indicates that Ms. Stinson understood the requirements of the permanency plans and that she
agreed to same. The record also indicates that DCS, Ms. Stinson’s attorney, and Mrs. Damron
were instrumental in encouraging and assisting Ms. Stinson in trying to meet those requirements.
Nonetheless, Ms. Stinson admits that she failed to comply with the plans, to wit:
Q [to Ms. Stinson]. Would you agree that you didn’t complete the
duties and responsibilities on the Permanency Plans that you signed?
A. Yes.
Q. And you have seen it [the plans]?
A. Yes.
Q. And your attorney and yourself have had opportunities to have at
least seen “The Criteria for Termination of Parental Rights”; correct?
A. Yes.
Q. Do you remember signing that?
A. Yes.
Q. And you understood at that time what it meant that you needed to
do to get your children back?
A. Yes.
Q. And up until the time that the Petition was served upon you to
terminate your parental rights, you had not accomplished the goals
that you needed to accomplish to have the children returned to you;
correct?
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A. No, I didn’t. I was trying, but I was fighting a losing battle.
By her own admission, Ms. Stinson has failed to substantially comply with the requirements of
the permanency plans.
Concerning the grounds of abandonment, we cannot conclude that Ms. Stinson has
willfully failed to visit with these Children during the statutory period. Although the record
indicates that her visitation has always been sporadic, and that, at one time, she did not visit from
Easter until November, she has (during the four months immediately preceding the filing of the
petition to terminate her parental rights) visited and phoned the children under the supervision of
Mrs. Damron. However, the record does support a finding of abandonment for willful failure to
support the Children. Although Ms. Stinson’s employment history is also sporadic, she had held
jobs periodically throughout the time the Children have been in DCS custody. However, the
record indicates that she has not paid any support (other than token) for these Children.
Finally, on the grounds of persistence of conditions, these Children initially came into
DCS custody due to indications of abuse (i.e. burn marks, head lice, diaper rash, and being
unkempt). As Ms. Stinson points out in her brief, these conditions have been remedied by
placing the Children in foster care. This Court, however, is concerned with the underlying
conditions in Ms. Stinson’s life that led to these Children being neglected while they were in her
legal custody. The record indicates that Ms. Stinson has abused drugs and alcohol since she was
twelve years old (at the time of the hearing in this matter, she was twenty-three). Because of her
substance abuse, Ms. Stinson has been unable to maintain stable relationships, employment, or
housing–and these are the conditions that ultimately led to removal of the Children. At the time
of the hearing, Ms. Stinson had completed a drug rehabilitation program at Teen Challenge;
however, there is some indication in the record, that Ms. Stinson had been seen under the
influence since her release from that program. The record also reveals that Ms. Stinson has had
previous drug rehabilitation, both in-patient and outpatient, and that she has relapsed following
those treatments. In addition, as of the date of the hearing, Ms. Stinson had no housing of her
own, she was engaged to Sean Strickland (a man that she had formerly done drugs with,
according to her own admission). While the hearing in this case was still going on, Ms. Stinson
quit her job as a carpet layer (making $8.00 per hour), and has started another job making $7.00
per hour. In short, her employment is still not stable. Although, the record indicates that Ms.
Stinson is at least trying to gain control over her addiction and to seek stability in her life, there is
no support for a finding that these changes have been completed to the point of permanency.
These Children have been in DCS custody for most of their young lives. Ms. Stinson has had
ample opportunity to effect the necessary changes in her life in order to parent her children.
However, the record shows that she has not made significant steps toward that goal. The
Children are now in a stable environment where they are well loved and cared for. There is every
indication that the Damrons wish to adopt the brothers. At this point, continuing the parent/child
relationship with Ms. Stinson will only work to delay the Children’s integration into a safe,
stable, and permanent home. Consequently, we conclude that there is clear and convincing
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evidence in the record to support the grounds for termination of Ms. Stinson’s parental rights to
the Children.
Best Interests
Before a court in this State can terminate a biological parent's parental rights, it must find
that doing so is in the best interest of the child. See T.C.A. § 36-1-113(c)(2). In determining
whether termination of parental rights is in a child's best interest, the lower court must consider
the following factors:
(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
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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.
T.C.A. § 36-1-113(i) (2005).
This list is not exhaustive, and the statute does not require the court to find the existence
of every factor before concluding that termination is in a child's best interest. State v. T.S.W., No.
M2001-01735-COA-R3-JV, 2002 Tenn.App. LEXIS 340, at *9 (Tenn.Ct .App. May 10, 2002).
The record before us is replete with evidence to support a finding that termination of Mr.
Henry and Ms. Stinson’s parental rights is in the best interests of these Children. Numerous
witnesses testified that the Children have bonded with the Damrons and that the Damrons have
provided a stable, and loving home for these boys. Although C.S.L.S. has some bond with Ms.
Stinson, the record supports a finding that his bond is stronger with his foster mother. The record
indicates that T.D.S. has primarily bonded with the foster mother. These bonds are not surprising
considering the fact that C.S.L.S. has been with the Damrons since he was one and T.D.S. has
been with them since he was four months old.
There is also substantial testimony concerning the bond these brothers have with each
other. Ms. Stinson’s grandfather testified that he has some concern with Ms. Stinson’s ability to
care for both Children. There is also some indication in the record that Mr. Henry’s father
wishes to have custody of C.S.L.S., his biological grandson. However, the record supports a
finding that separating these two brothers would be extremely detrimental to each of them. On
the other hand, the Damrons have expressed a desire to adopt both boys and to raise them
together.
As discussed above, neither Mr. Henry nor Ms. Stinson have ever provided any
significant support for these Children. Also, neither party has been able to maintain stable
employment and/or housing. There is also no meaningful relationship between Mr. Henry and
C.S.L.S. Although there is some bond between the boys and Ms. Stinson, there is no indication
that the Children suffer separation anxiety after visiting with Ms. Stinson, or that they ask about
her when she is absent. Rather, the record indicates that the Children recognize the Damrons as
their mother and father and have bonded with them accordingly. Consequently, the trial court’s
finding that termination is in the best interests of these Children is supported by clear and
convincing evidence in the record.
Case Recordings
Ms. Stinson asserts that the trial court committed reversible error by admitting, over
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objection, the DCS case recordings. Specifically, Ms. Stinson asserts that these records
contained hearsay. We first note that the trial court is afforded wide discretion in the admission
or rejection of evidence, and the trial court's action will be reversed on appeal only when there is
a showing of an abuse of discretion. See Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439(Tenn.1992); Davis v. Hall, 920 S.W.2d 213, 217 (Tenn.Ct.App.1995).
The case recordings at issue are the business records of DCS, which were maintained in
accordance with DCS’s internal procedures. As such, these records are generally admissible as
records of regularly conducted business activities. See Tenn. R. Evid. 803(6). Because Ms.
Stinson made no objection to any specific content of these records, there is no grounds for
determining whether the records contained hearsay. Consequently, we cannot say that the trial
court abused its discretion in allowing these records into evidence. Nonetheless, there is no
indication that the trial court relied on these records in reaching its decision in this case. As
discussed above, there is clear and convincing evidence in this record to support the trial court’s
findings even in the absence of these records. Therefore, even if we assume, arguendo, that the
trial court should have sustained Ms. Stinson’s objection as to the admissibility of these records,
such error would be harmless considering the totality of the record.
For the foregoing reasons, we affirm the Order of the trial court terminating the parental
rights of Mr. Henry and Ms. Stinson. Costs of this appeal are assessed one-half to Jason Henry,
and his surety, and one-half to Patricia Danielle Stinson, and her surety.
__________________________________________
W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.
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