In Re: Destiny S. ( 2011 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
December 13, 2010 Session
IN RE: DESTINY S.
Appeal from the Juvenile Court for Scott County
No. 11225-JUV James L. Cotton, Jr., Judge
No. E2010-00646-COA-R3-PT - FILED JANUARY 13, 2011
Hank P. (“Father”) is the biological father of Destiny S. (“the “Child”). After the Child was
removed from Father’s home in 2006, the Department of Children’s Services (“DCS”)
eventually filed a petition to terminate his parental rights to the Child. Following a trial, the
Juvenile Court found that clear and convincing evidence existed to terminate Father’s
parental rights pursuant to Tenn. Code Ann. §§ 36-1-113(g)(2) and (g)(3). The Juvenile
Court also found that the evidence established clearly and convincingly that it was in the best
interest of the Child for Father’s parental rights to be terminated. Father appeals challenging
these findings as well as an evidentiary ruling and the Juvenile Court Judge’s refusal to
recuse himself. We affirm the Juvenile Court’s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the
Juvenile Court Affirmed; Case Remanded
D. M ICHAEL S WINEY, J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS,
P.J., and C HARLES D. S USANO, J R., J., joined.
Andrew N. Hall, Wartburg, Tennessee, for the Appellant, Hank P.
Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General,
and Rebekah A. Baker, Assistant Attorney General, Nashville, Tennessee, for the Appellee,
State of Tennessee, Department of Children’s Services.
OPINION
Background
The record in this case begins with a petition to terminate Father’s parental
rights filed by DCS in February 2009.1 In the petition, DCS alleged that the Child had been
in DCS custody since July 12, 2006, when the Juvenile Court issued an order granting DCS
emergency protective custody. The Child thereafter was found to be dependent and
neglected on September 25, 2006.
The Child was born in November 2005 with severe congenital defects which
required a tracheotomy and the use of a feeding tube. The Child first came into DCS custody
after being admitted to the hospital for dehydration. According to the petition:
DCS removed the child from [the] home because the child was
hospitalized due to her medical condition; she was dehydrated
and had lost two pounds in one week; she was eight months old
at the time and weighed six pounds when taken to the hospital;
the child was born with congenital defects; the child used a
feeding tube and trach; there was environmental neglect and the
unsanitary conditions affected the child’s health. . . .
As grounds to terminate Father’s parental rights, DCS alleged in the petition
that Father had failed to substantially comply with the requirements contained in various
permanency plans developed for him over the years after the Child came into DCS custody.
The initial permanency plan required Father to obtain a safe, clean, and adequate home, to
obtain parenting and mental health assessments, to complete parenting classes, to complete
medical training so he could take care of the Child, to obtain reliable transportation, to ensure
that the Child’s monitor and feeding tube were clean and hooked up properly, and to properly
supervise the Child. Approximately ten months later, a revised permanency plan was created
to give Father more time to complete the various requirements. According to the petition:
[Father] has not substantially complied with the
responsibilities and requirements set out for him in the
permanency plans. He does not have adequate housing which
is free from any environmental hazards which would endanger
1
DCS also sought to terminate the parental rights of the Child’s biological mother. The mother’s
parental rights were terminated by the Juvenile Court, and that decision has not been appealed by the mother
and is not at issue in this appeal.
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the child. He has not demonstrated that he can monitor the child
to ensure that she is breathing and stable at all times, and that
her monitor and tubing are clean and hooked up properly. He
has not demonstrated that he knows how to operate her feeding
machine. He has not acquired or displayed knowledge of her
feeding schedule. He does not have his own home. He has not
obtained medical training to care for the child. He does not take
an active role in her medical care nor did he provide medical
care to the child during visits or while she was present in the
home. He has not completed a parenting assessment. He has
not provided DCS with documentation of his mental health
assessment. . . .
DCS made reasonable efforts to help [Father] . . . satisfy
the requirements in the permanency plans by instructing [him]
to attend physician’s appointments and follow physician’s
recommendations as to how to appropriately care for and feed
the child; . . . [helping him] schedule training at Children’s
Hospital; providing in-home services to work on parenting and
environmental issues; advising [him] of appointment times;
helping [him] to schedule a mental health assessment[],
parenting assessment[], and parenting classes; providing the
DCS Health Care Unit Nurse to assist [him] with the child’s
medical appointments and understanding the physician’s
instructions; . . . [and] to see if [Father’s home was] clean and
if [he] could demonstrate proper medical care for the child; . . .
providing ongoing case management; providing daily care and
support for the child; providing medical and dental care for the
child; developing a plan for reunification . . . and ongoing
advice and recommendations . . . . (original paragraph
numbering omitted)
As an additional ground to terminate Father’s parental rights, DCS alleged that
the conditions which led initially to the removal of the Child from the home continued to
persist or other conditions persisted which in all reasonable probability would lead to further
neglect or abuse of the Child. According to DCS, there was little chance that these
conditions would be remedied in the near future so that the Child could be returned safely
to Father’s care. Finally, DCS alleged that it was in the Child’s best interest for Father’s
parental rights to be terminated.
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After the petition was filed, Father obtained counsel and a guardian ad litem
was appointed on the Child’s behalf. The trial was held on February 12, 2010. DCS called
Father as the first witness. Father testified that he and the Child’s mother, Shay S., are no
longer in a relationship. Father currently is married to Judy P. and has been since 1992.
Father was married to Judy P. during the three or four years that he lived with the Child’s
biological mother. Father is once again living with Judy P.
Father testified that he is afraid to give the Child medicine because he “might
[accidentally] overdose them or something.” He would not be afraid to give the Child
medicine “[i]f I knowed how to do it.” Father admitted that the Child has had a trach since
she was born and he has cleaned it only one time. He has cleaned her trach only one time
because he was “afraid to put it back in her neck and jab her too hard.” Father has not
attempted to obtain any training on his own that would help him take care of the child.
Father has not attempted to locate any schools or speech therapy facilities that the Child
could attend and that are close to where he lives in the event he was awarded custody. Father
was not aware that the Child was receiving physical therapy. Father was aware that the Child
was receiving feeding therapy. When asked if he has tried to locate a facility close to where
he lives that could provide similar therapy, Father responded “Nope.”
Father is not aware of the type of food that the Child is able to eat and how
much food she should be given. Father was not aware that the Child also suffered from
chronic constipation. Father does not know what an enema is. Father claimed to have
attended all of the Child’s medical appointments. When asked why he did not know about
several of the Child’s medical conditions if he really did attend all of the appointments,
Father responded it was because “I forget.” Father admitted his forgetfulness could be a
problem if he had custody of the Child. Father acknowledged that he took the Child to the
hospital shortly before DCS obtained custody of the Child. According to Father, he was out
looking for a job and when he returned home the Child was blue. He took her to the hospital
where she “flatlined” and had to be revived.
Father testified that he did undergo a mental health assessment at a facility
located in Scott County, but he is not aware of the results and did not bring them to court.
Father completed the parenting assessment in February of 2009 after the petition to terminate
parental rights had been filed. Father remembered signing the original parenting plan. He
does not remember signing any subsequent plans or the document which explained the
consequences of not completing the requirements of the parenting plan. Father testified that
both he and his wife currently are receiving disability benefits.
The next witness was Crystal Mitchell (“Mitchell”), who has been employed
by DCS for almost five years. Mitchell stated that she first became involved with the Child
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in 2006 when she received a referral for environmental neglect. According to Mitchell, the
Child had to be hospitalized and after talking to several medical professionals, it was
determined that the Child’s home environment played a part in her medical condition. The
Child was severely dehydrated and had “coded” at the hospital. The Child was removed
immediately from the custody of her parents.
Betty Pursiful (“Pursiful”) was called as a witness. Pursiful is a registered
nurse and is employed by DCS as a nurse consultant. Pursiful became involved with the
Child’s case because DCS monitors children with medical needs who come into DCS
custody. The Child was determined to be medically fragile and was placed with foster
parents capable of tending to those medical needs. Pursiful met with the Child’s parents at
doctor appointments and talked with them on the phone, etc.
According to Pursiful, the Child was placed back in the parents’ home on a trial
basis in early 2008. Soon thereafter Pursiful received a phone call from a social worker who
worked with one of the Child’s physicians. The social worker was very concerned because
the Child had lost two pounds. Pursiful went to the parents’ home and discussed the amount
of food the Child was being given, etc. Pursiful stated that while she was going over
everything, Father “just sat on the couch. [The mother] mentioned to me several times that
he doesn’t help her with the [Child’s] care . . . .” Pursiful eventually recommended that the
trial home placement end. The primary reason for this was the Child’s weight and the fact
that the Child was not being fed properly. Pursiful added that she has never seen Father
attend to any of the Child’s medical needs other than transporting her to the doctor. “I’ve not
seen him hands-on take care of her trach or G-tube.”
The next witness was Azmat Moinuddin (“Moinuddin”), who works for an
outpatient mental health facility. Moinuddin has a master’s degree in mental health
counseling. Moinuddin performed a parenting assessment on Father. Moinuddin discussed
the various scores Father received on the parenting tests and ultimately concluded that Father
was not capable of parenting the Child unless certain things were accomplished, including
in-home services to help Father deal with a medically fragile child. When asked if her
conclusion would change if Father already had been provided these in-home services,
Moinuddin stated:
If they had been provided and in-home services been
done and he still scored this way I would have felt like this child
would not benefit from this parent or this child would not be
taken care of emotionally and physically and for her well-being
if he still scored this way after this stuff had been done.
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The Child’s foster mother, Betty A. (the “Foster Mother”), also was called as
a witness. The Foster Mother testified that she first started caring for the Child in July 2006.
The Foster Mother described the Child’s state of health in July 2006 as “pathetic.” She could
see the Child’s ribs. The Child could not sit up and required a trach and a G-tube. While she
was caring for the Child, the Foster Mother called Father and informed him of doctor
appointments, etc., and has given Father access to the Child for visitation. Father visited
with the Child whenever he was given the opportunity. The Foster Mother also testified as
follows:
Q. Has [Father] attempted to take care of [the Child]
medically during any of those visits?
A. No.
Q. Have you tried to show him how to do that?
A. Not lately.
Q. At what point did you?
A. I’m sure there was. He was in the room back early
on when I was telling [the mother] things. I don’t really
remember because she was going to be the primary caretaker, I
mean, she said that [Father] wouldn’t help her and I had asked
[Father] on occasion, I said, are you listening to this . . . because
you need to do this. If that trach gets stopped up, you know, this
was one incident, will you take care, he said, no, that’s [the
mother’s] job.
According to the Foster Mother, the Child was in good condition at the
beginning of the trial home placement. When the Child was returned to the Foster Mother’s
care after the trial home placement ended, “I cried. Her hair was all matted and she was
skinny and she looked terrible. She was shallow and sick.” The Foster Mother took the
Child to the doctor, and the doctor discovered mold in the Child’s trach. The Foster Mother
testified at length as to what efforts she goes to on a daily basis to make sure the Child is
cared for properly. The Foster Mother acknowledged that Father loves the Child and the
Child cares for Father. The Foster Mother has expressed her desire to adopt the Child if the
Child becomes available for adoption.
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Dianne Davis (“Davis”) also testified at trial. Davis has worked for both the
Campbell County and Scott County Health Departments. Davis was a care coordinator with
the Tennessee Early Intervention Program. Davis assisted the Child’s mother in applying for
SSI benefits and public housing. According to Davis:
I would assist if [the mother and Father] had
appointments scheduled, if they followed up with appointments
I would assist with supplies for the baby because the baby was
with the trach, I would assist with special formula if the baby
had formula. One major thing I was doing was trying to get the
trailer sprayed for bugs. . . .
Davis stated that several appointments had to be rescheduled because the parents missed the
original appointment. One of these missed appointments was with a specialist at Children’s
Hospital.
Carrie Ooten (“Ooten”) is a case manager for DCS and testified at trial that the
Child first came into DCS custody on July 11, 2006. The Child was taken into DCS custody
because of medical and environmental issues. The first permanency plan was developed in
July of 2006. At that time, the goal was reunification. With the first permanency plan, both
parents were required to: (1) obtain appropriate housing; (2) obtain reliable transportation;
(3) attend all medical appointments and therapy sessions; (4) undergo a home health
assessment and mental health assessment; and (5) complete parenting classes. The plan later
was revised to extend the time in which both parents had to complete the requirements, but
the requirements essentially remained the same. The plan was revised a third time when the
trial home placement took place. At that time, DCS worked with both parents to link all of
the services possible to have a successful transition to the parents’ home. When the trial
home placement was unsuccessful, the plan was revised yet again, but this time adoption was
added as a dual goal in the event the parents were unable to provide a healthy and safe
environment for the Child.
When asked the type of services DCS provided to Father in order to help him
regain custody of the Child, Ooten stated:
We provided intensive in-home services through
Florence Crittenton, the lady that worked with the
family . . . [assisted] with the home and tried to help teach the
parents how to keep their home clean. She also worked with
them on having positive relationships with one another. She
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worked on parenting in regards to [the Child] and her sibling.2
She was helpful at times with bringing needed items that the
family might need. She also worked with father and mother on
budgets and financial education. . . .
We set up ETHRA for various appointments or visits and
I also had the opportunity from time to time to assist by taking
the parents to appointments or visits to see [the Child] on a
couple occasions. . . . I did on multiple occasions I took
groceries, personal hygiene items, clothing for [the Child and
her brother], cleaning supplies, and things of that nature,
furniture. I tried to explain in detail the proper way to try to
clean with Clorox wipes and things of that nature because one
of the requirements was that the home be clean for [the
Child] . . . .
Ooten stated that she explained to the mother and Father the importance of
having a clean environment, especially in light of the Child’s medical issues. Ooten added
that she personally showed the parents how to clean. Ooten stated that DCS also assisted the
parents in paying bills and provided gas cards so they could attend doctor appointments and
visitation. Both parents went through medical training with regard to the trach and feeding
tube.
Ooten discussed the trial home placement that took place in January 2008.
According to Ooten, the trial home placement ended in February because the Child was
losing so much weight and her health was being impacted. The trial home placement was
revoked at the recommendation of the Child’s physicians. At that time, any further visitation
by either parent was supervised.
Ooten testified that Father had unstable housing for a while and lived with his
sister and then went back to his wife. He was scheduled for a mental health assessment twice
but did not show up. Father obtained a parenting assessment in early 2009, which is several
years after the original permanency plan was developed requiring this assessment. Father
obtained the parenting assessment around the time the petition to terminate his parental rights
was filed. Ooten is not aware of Father following the recommendations made in the
parenting assessment. Father has not demonstrated that he knows how to use the medical
2
The parental rights of Father to his son, the Child’s brother, are not at issue in this appeal.
However, we note that after Father and the Child’s mother ended their relationship, the mother got a new
boyfriend who eventually pled guilty to sexually abusing the Child’s brother.
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machines. While Father’s current housing situation is acceptable and he has reliable
transportation, he did not obtain suitable housing until after the petition to terminate parental
rights had been filed. Father still cannot take care of the Child’s medical needs,
notwithstanding the medical training that he received. Ooten recalls hearing Father state that
he “doesn’t mess with or fool with the medical equipment and he left that to [the Child’s
mother].” Ooten summed up her testimony by stating that Father has not demonstrated that
he is capable of taking care of the Child and it would not be safe for the Child to be returned
to his care.
Following the trial, the Juvenile Court entered a very detailed order terminating
Father’s parental rights. The Juvenile Court stated, in relevant part:
The child . . . was brought into DCS custody on July 11,
2006, after she was hospitalized in a grave medical condition.
DCS had been providing services to [both parents] prior to that
date, including advising them of how to keep their home clean
and how to attend to [the child’s] medical needs. [The
biological mother and Father] were paramours and were living
together at the time of the removal, though [Father] was
married, and is still married, [to Judy P.] On September 25,
2006 . . . there was clear and convincing evidence that the child
was dependent and neglected within the meaning of the law,
based on the allegations in the Department’s Petition, which
included that the child was hospitalized, was found to be
dehydrated and had lost two pounds in one week, that the child
was eight months old at the time and weighed six pounds when
taken to the hospital, that the child was born with congenital
defects, that the child used a feeding tube and trach, that there
was environmental neglect in that the child’s surroundings were
not sanitary, that there were insects and roaches in the suction
tube used to treat the child . . . . The Court ratified permanency
plans for the child on August 14, 2006, June 25, 2007, and June
26, 2008. The permanency plan was again revised on June 19,
2009. All the plans were signed by [Father, who also signed]
“Criteria and Procedures for Terminating Parental Rights” on
July 26, 2006, June 26, 2008, and July 15, 2009.
The child was placed in the physical custody of the
parents on a trial home placement on January 8, 2008. DCS
revoked the trial home placement on or about March 2, 2008,
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due to the child’s physical condition deteriorating since starting
the trial home placement. The child had suffered significant
weight loss, and her doctors recommended that she be removed
from the home. . . .
The child has had surgery on her cleft palate and
undergone therapy on a continuing basis to learn how to eat and
speak. . . . The Court reviewed the matter . . . in December
2008, and again on March 2, 2009. . . . The Court . . . found that
the father did not have a suitable home and had not
demonstrated that he could properly care for the child. . . .
The Department filed its Petition to Terminate Parental
Rights on February 23, 2009. [Father] was personally served on
March 2, 2009. . . . [Father] announced on May 4, 2009, that he
had retained counsel. . . . Attorney John Beaty was appointed as
the child’s Guardian ad litem. . . .
Crystal Mitchell, whom the Court finds to be a reliable
and credible witness, is a DCS case manager and was the Child
Protective Services case manager at the time of [the child’s]
removal. She testified that [Father and the biological mother]
were residing together . . . at the time of the child’s removal.
The child was removed due to concerns that the parents were not
obtaining proper medical care for the child, were not providing
the daily care necessary for the child to remain in good health,
and were subjecting the child to environmental neglect that
could endanger her health.
DCS made reasonable efforts to prevent the child . . .
from coming into DCS custody. Diane Davis, whom the Court
finds to be a credible and reliable witness, testified that she
worked with the Health Department’s Tennessee Early
Intervention Services at the time. She advised [both parents] on
how to schedule appointments with the child’s primary care
physician and with providers. She also assisted them with
obtaining and scheduling transportation. She assisted them with
getting gas money to take the child to the doctor. She advised
[both parents of] the importance of keeping medical
appointments. . . . She also assisted them in obtaining supplies
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such as baby formula. However, she recalled that they missed
a specialist appointment at Children’s Hospital, and missed
other medical appointments.
DCS made reasonable efforts to reunify [the child and
Father]. The case manager, Carrie Ooten, whom the Court finds
to be a reliable and credible witness, testified that she personally
brought cleaning supplies and other supplies . . . to [the parents’]
home. She personally demonstrated how to use the cleaning
products in the home. . . . Carrie Ooten testified that [Father]
was present during the training but did not pay attention to it.
Carrie Ooten testified that [Father] stated that he would rely on
[the biological mother] to attend to the cleaning and to [the
child’s] medical needs. Carrie Ooten testified that both parents
have completed parenting classes, as well as medical training
through Children’s Hospital. [Father] completed the medical
training twice. Carrie Ooten testified that a service provider was
placed in the home . . . to work with them on parenting,
environmental, and budgeting issues. She has not received any
documentation that either parent has completed a mental health
assessment. They only completed the parenting assessment in
February 2009. The requirement of the parenting assessment
has been on all of the permanency plans since 2006. . . .
[Father] testified that he could take care of [the child] if
necessary, but when asked to provide a specific explanation as
to [the child’s] daily care, including the maintenance and
functioning of her feeding machine, he could not do so. He
testified that he had not inquired as to whether a school that
could meet [the child’s] needs was present near his home. He
had not inquired as to what doctor [the child] would see should
she be in his care. He had not inquired as to where he would
take [the child] to obtain feeding and speech therapy. He
admitted that during the trial home placement, he had kept [the
child] up until midnight explaining that they were “having fun.”
He denied knowing that this could be detrimental to her health.
He testified that he would be “scared” to perform some medical
procedures on the child. He testified that he did not know what
an enema was and did not know that [the child] often requires
one. . . . He testified that he had obtained a mental health
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assessment but did not know where he had obtained it. He did
not bring the recommendations of the assessment to Court and
did not know what the recommendations were.
The Juvenile Court went on to discuss the testimony of the Foster Mother as
to the Child’s daily medical and nutritional requirements. These requirements included
teaching the Child to eat and monitoring the feeding machine, cleaning the feeding tube,
giving the Child an enema when necessary, taking her to doctor and therapy appointments,
etc. The Juvenile Court noted that according to the Foster Mother, when the Child returned
after the trial home placement with the parents, she returned in horrible condition and was
very sick. Although the Child no longer has a trach, she still uses a feeding tube.
The Juvenile Court then discussed the testimony of Moinuddin who had
testified at trial as an expert and who conducted Father’s parenting assessment. The Juvenile
Court observed that Moinuddin concluded that Father felt overwhelmed and inadequate to
the task of parenting. The Juvenile Court also took note of Moinuddin’s testimony that
numerous services would need to be provided to help Father properly take care of the Child,
and when asked what her recommendation would be if Father already had been provided
these services, Moinuddin responded that she would not recommend that the Child be
returned to Father.
Based on all of the foregoing, the Juvenile Court concluded that DCS had
submitted sufficient evidence to establish clearly and convincingly that grounds had been
proven pursuant to Tenn. Code Ann § 36-1-113(g)(2) and (g)(3) in which to terminate
Father’s parental rights. The Juvenile Court also found that DCS had proven clearly and
convincingly that termination of Father’s parental rights was in the Child’s best interest.
Father appeals claiming that the Juvenile Court erred when it found that
grounds to terminate his parental rights had been proven by clear and convincing evidence
and that it was in the Child’s best interest for his parental rights to be terminated. Father also
claims that the Juvenile Court Judge erred when he failed to recuse himself from the case and
further erred when he refused to allow Father to make an offer of proof at trial as to excluded
evidence.
Discussion
Our Supreme Court reiterated the standard of review for cases involving
termination of parental rights In re F.R.R., III, 193 S.W.3d 528 (Tenn. 2006). According to
the Supreme Court:
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This Court must review findings of fact made by the trial
court de novo upon the record “accompanied by a presumption
of the correctness of the finding, unless the preponderance of the
evidence is otherwise.” Tenn. R. App. P. 13(d). To terminate
parental rights, a trial court must determine by clear and
convincing evidence not only the existence of at least one of the
statutory grounds for termination but also that termination is in
the child’s best interest. In re Valentine, 79 S.W.3d 539, 546
(Tenn. 2002) (citing Tenn. Code Ann. § 36-1-113(c)). Upon
reviewing a termination of parental rights, this Court’s duty,
then, is 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 at 530.
We first address whether grounds to terminate Father’s parental rights had been
proven by clear and convincing evidence. There were two grounds upon which the Juvenile
Court terminated Father’s parental rights: substantial noncompliance with the requirements
of a permanency plan and continuation of persistent conditions. We will discuss both of
these grounds. The relevant statutory provisions provide as follows:
(g) Initiation of termination of parental or guardianship rights
may be based upon any of the grounds listed in this subsection
(g). The following grounds are cumulative and non-exclusive,
so that listing conditions, acts or omissions in one ground does
not prevent them from coming within another ground:
* * *
(2) There has been substantial noncompliance by the
parent or guardian with the statement of responsibilities in a
permanency plan pursuant to the provisions of title 37, chapter
2, part 4; [and]
(3) 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:
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(A) The conditions that led to the child’s removal or
other conditions that in all reasonable probability would
cause the child to be subjected to further abuse or neglect
and that, therefore, prevent the child’s safe return to the
care of the parent(s) or guardian(s), still persist;
(B) There is little likelihood that these conditions will be
remedied at an early date so that the child can be safely
returned to the parent(s) or guardian(s) in the near future;
and
(C) The continuation of the parent or guardian and child
relationship greatly diminishes the child’s chances of
early integration into a safe, stable and permanent
home[.]
Tenn. Code Ann. § 36-1-113(g)(2) and (g)(3).
With regard to the ground that Father failed to substantially comply with the
requirements in his permanency plan(s), we note that several of the critical requirements were
completed near or after the time the petition to terminate Father’s parental rights was filed
and 2½ years after the initial plan was created. These requirements include, but are not
limited to, obtaining suitable housing and undergoing a parenting assessment.
Father offered no legitimate explanation as to why these requirements could
not have been completed after the initial plan was created and before the petition was filed
2½ years later. In addition, if Father did undergo a mental health assessment, DCS never was
informed of the results. While Father did receive medical training, he never successfully
learned how to operate the Child’s feeding machine and to properly clean the tube. When
the petition was filed, Father did not have suitable housing for the Child.
The facts clearly and convincingly establish that Father did not substantially
comply with the requirements of his permanency plans so that the Child could be returned
to his care. Therefore, we affirm the judgment of the Juvenile Court that the ground to
terminate Father’s parental rights set forth in Tenn. Code Ann. § 36-1-113(g)(2) had been
proven by clear and convincing evidence.
The next issue is whether DCS proved the existence of “persistent conditions”
as set forth in Tenn. Code Ann. § 36-1-113(g)(3). There is no doubt that the Child had been
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removed from the Father’s home for at least six months and the conditions that led to her
removal or other conditions existed which prevented her safe return. These conditions
primarily include Father’s admitted inability and/or unwillingness to provide the Child with
required medical care. If the Child were returned to his care, her safety from a medical
standpoint would be questionable, at best. Father was unable to provide the necessary
medical care even though he had been provided medical training on two occasions. As such,
there is little likelihood that his inability to provide proper medical care would be remedied
in the near future. Continuation of the parent/child relationship greatly diminishes the
chances of the Child’s early integration into a stable and safe home.
In short, this medically fragile Child would be placed at substantial risk if she
were returned to Father’s care. Accordingly, we affirm the judgment of the Juvenile Court
that the ground to terminate Father’s parental rights pursuant to Tenn. Code Ann. § 36-1-
113(g)(3) had been proven by clear and convincing evidence.
We also must determine whether DCS proved by clear and convincing
evidence that termination of Father’s parental rights was in the Child’s best interest. The
pertinent statute provides as follows:
(i) In determining whether termination of parental or
guardianship rights is in the best interest of the child pursuant to
this part, the court shall consider, but is not limited to, the
following:
(1) Whether the parent or guardian has made such an
adjustment of circumstance, conduct, or conditions as to make
it safe and in the child’s best interest to be in the home of the
parent or guardian;
(2) Whether the parent or guardian has failed to effect a
lasting adjustment after reasonable efforts by available social
services agencies for such duration of time that lasting
adjustment does not reasonably appear possible;
(3) Whether the parent or guardian has maintained
regular visitation or other contact with the child;
(4) Whether a meaningful relationship has otherwise been
established between the parent or guardian and the child;
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(5) The effect a change of caretakers and physical
environment is likely to have on the child’s emotional,
psychological and medical condition;
(6) Whether the parent or guardian, or other person
residing with the parent or guardian, has shown brutality,
physical, sexual, emotional or psychological abuse, or neglect
toward the child, or another child or adult in the family or
household;
(7) Whether the physical environment of the parent’s or
guardian’s home is healthy and safe, whether there is criminal
activity in the home, or whether there is such use of alcohol or
controlled substances as may render the parent or guardian
consistently unable to care for the child in a safe and stable
manner;
(8) Whether the parent’s or guardian’s mental and/or
emotional status would be detrimental to the child or prevent the
parent or guardian from effectively providing safe and stable
care and supervision for the child; or
(9) Whether the parent or guardian has paid child support
consistent with the child support guidelines promulgated by the
department pursuant to § 36-5-101.
Tenn. Code Ann. §36-1-113(i) (2009).
There is no doubt that Father loves the Child and that there is a bond between
them. Nevertheless, Father has not made an adjustment of circumstance such that it would
be safe for the Child to return to his care. Even by the time of trial, Father admitted that he
did not know how to use and clean the Child’s feeding tube and feeding machine. He had
over three years to learn this crucial activity. He did not obtain adequate housing until after
the petition to terminate his parental rights had been filed. Because Father has not done what
was necessary in order for him to be able to take care of the Child’s medical needs even
though he has had every opportunity to do so, we agree with the Juvenile Court that DCS
presented clear and convincing evidence that termination of Father’s parental rights was in
the Child’s best interest.
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Father’s remaining issues are intertwined. Father claims that the Juvenile
Court Judge erred when he: (1) denied Father’s motion to recuse; and (2) refused to allow
him to make an offer of proof consisting of certain testimony of Father’s wife that had been
excluded as hearsay.
The basis of the motion to recuse involved a hearing that was scheduled for
January 2010. Father’s attorney was not present when the case was called. He should have
been present. Thus, it appeared to the Juvenile Court that Father was unrepresented.
According to DCS’s attorney:
Your honor, I was actually present, the Court just called the
matter up to the bar . . . [and] the Court simply asked . . .
whether or not this was going to be a contested matter and I said
I don’t know. The Court turned to [Father] and I believe the
Court said, is your attorney coming, and he said no, he can’t be
here. Then the Court asked if he was going to surrender, if this
was going to be a hearing, and I believe [Father] responded he
didn’t know, he didn’t talk to his attorney and that was the end
of it.
Father took the Juvenile Court’s questions as to whether he was going to
contest the petition as the Court being prejudiced against him and suggesting that in the
Court’s opinion he should surrender his parental rights. Testimony by Father’s wife as to
what was said by the Juvenile Court Judge was excluded as hearsay and the Juvenile Court
Judge told Father that he did not have the right to direct questions directly to the Judge. We
note that the Juvenile Court Judge did state that he had no specific recollection of talking
with Father but indicated that he typically inquired when a case was called as to whether the
case was settled or was going to trial. The Juvenile Court Judge also stated that he could not
conceive of a situation where he would require a party to proceed without his or her attorney.
We review a trial court’s evidentiary decisions under the abuse of discretion
standard. DePasquale v. Chamberlain, 282 S.W.3d 47, 57 (Tenn. Ct. App. 2008). Initially,
we note that the irony has not escaped us that this whole situation was caused by Father’s
attorney not showing up for court and is now being used by Father to assert error. See Tenn.
R. App. P. 36(a) which provides that “[n]othing in this rule shall be construed as requiring
relief be granted to a party responsible for an error or who failed to take whatever action was
reasonably available to prevent or nullify the harmful effect of an error.” We also note that
DCS’s attorney and the other attorneys in this case were not made aware until the morning
of trial and after all available witnesses were present at court that Father was going to seek
recusal.
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The Juvenile Court Judge stated on the record that he did not recall any specific
conversations with Father so there was no offer of proof to be made regarding the Judge’s
potential testimony. Accordingly, we need not, and do not, express any opinion on whether
the Judge should have answered questions submitted to him concerning the events in court
that January 2010.
We agree with Father that the Juvenile Court should have allowed Father to
make an offer of proof regarding the proffered testimony of Father’s wife.3 Nevertheless,
we have reviewed the entire record in this case several times and there is absolutely nothing
in the record that would even remotely suggest that the Juvenile Court Judge was in any way
prejudiced against Father. Because Father was afforded a constitutionally sound and fair trial
in every respect, to the extent that anything said to Father a month before the trial when the
Juvenile Court Judge was calling the docket could be misinterpreted as showing prejudice,
we find such error in not allowing Father to make an offer of proof as to his wife’s testimony
to be harmless. We pretermit whether the proffered testimony of Father’s wife was properly
excluded as hearsay.
“Concerning the recusal issue, whether recusal is warranted is left to the
discretion of the trial judge, and such decision will not be reversed absent a clear abuse of
discretion on the face of the record.” Bd. of Prof’l Responsibility v. Slavin, 145 S.W.3d 538,
546 (Tenn. 2004)(citing Davis v. Liberty Mut. Ins. Co., 38 S.W.3d 560, 564 (Tenn. 2001)).
Because the record supports a conclusion that, at most, Father misunderstood what he was
being told when the Juvenile Court Judge was calling the docket, and because the record
fully supports a conclusion that Father was afforded a fair trial in all respects, we conclude
that the Juvenile Court Judge did not abuse his discretion when denying Father’s motion to
recuse.
3
No transcript is available from this hearing where Father claims prejudicial statements were made
to him.
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Conclusion
The judgment of the Juvenile Court is affirmed, and this cause is remanded to
the Scott County Juvenile Court solely for collection of the costs below. Costs on appeal are
taxed to the Appellant, Hank P., and his surety, for which execution may issue, if necessary.
___________________________________
D. MICHAEL SWINEY, JUDGE
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