In Re: Dacia S. ( 2013 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs December 28, 2012
IN RE: DACIA S., ET AL.
Appeal from the Juvenile Court for Hamilton County
Nos. 245942, 245943, 245944 Suzanne Bailey, Judge
No. E2012-01797-COA-R3-PT-FILED-FEBRUARY 14, 2013
The State of Tennessee Department of Children’s Services (“DCS”) filed a petition seeking
to terminate the parental rights of Sheila W.1 (“Mother”) to the minor children Dacia S.,
Aerial W.2 , and Teagan W.3 After a trial, the Trial Court entered its order terminating
Mother’s parental rights to the Children after finding and holding, inter alia, that DCS had
proven by clear and convincing evidence that grounds existed to terminate Mother’s parental
rights pursuant to Tenn. Code Ann. § 36-1-113(g)(2) and § 36-1-113(g)(3) and that the
termination was in the Children’s best interest. Mother appeals to this Court. We affirm.
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 C HARLES D. S USANO,
J R., P.J., and J OHN W. M CC LARTY, J., joined.
Jennifer G. Lloyd, Chattanooga, Tennessee, for the appellant, Sheila W.
1
DCS also sought to terminate the parental rights of the Children’s biological father Donald S.
(“Father”). The Trial Court terminated Father’s parental rights to the Children and Father’s appeal of the
termination of his parental rights was pending before this Court at the time of the release of this Opinion.
2
Within the record on appeal Aerial is sometimes referred to using Father’s surname and sometimes
referred to using Mother’s surname. Aerial’s birth certificate is not included in the record on appeal. We
refer to Aerial W. with the understanding that we are referring to the child Aerial S. a/k/a Aerial W.
3
Within the record on appeal Teagan is sometimes referred to using Father’s surname and sometimes
referred to using Mother’s surname. Teagan’s birth certificate is not included in the record on appeal. We
refer to Teagan W. with the understanding that we are referring to the child Teagan S. a/k/a Teagan W.
Robert E. Cooper, Jr., Attorney General and Reporter; and Alexander S. Rieger, Assistant
Attorney General for the appellee, State of Tennessee Department of Children’s Services.
OPINION
Background
The Children were taken into State custody on December 14, 2009. DCS filed
the petition seeking to terminate Mother’s parental rights to the Children in September of
2011. The case proceeded to trial in June and July of 2012.
DCS caseworker Renita Underwood testified at trial. Ms. Underwood was
assigned to this case approximately six months after the Children came into State custody and
has remained the caseworker for the Children since that time. Ms. Underwood explained that
the Children originally were taken into custody because Mother was not on her medication
and Mother and the Children were living in a car. Ms. Underwood testified that Mother was
assessed at Moccasin Bend in December of 2009, diagnosed with psychotic disorder, and
prescribed Risperdal. DCS set up medication management for Mother with Joe Johnson and
provided in-home service to assist with transportation and monitoring.
Permanency plans were created which required Mother to pay child support
quarterly, have stable housing, remain on her medication, maintain employment, and attend
all meetings with DCS, among other things. Mother was employed at a gas station
convenience store across the street from her apartment from November of 2010 until April
of 2011.
The Children were returned to Mother for a trial home visit beginning on
February 5, 2011. Ms. Underwood testified that the Children were placed for the trial home
visit because:
The mother had completed her perm plan. She had did everything the
department had asked her to do. She had a stable home with enough
bedrooms; her mother was assisting her with the children with daycare when
she went to work; she was on her medication; she had in-home services. So
she had did everything the department had asked on her perm plan.
On April 12, 2011, the trial home visit was terminated and the Children were
taken back into State custody. Ms. Underwood explained that Mother’s sister called DCS
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on April 12, 2011 because Mother had assaulted her mother, police had been contacted, and
Mother was no longer on her medication. Ms. Underwood described the incident stating:
So I got out there. The mother was in the kitchen. She was crying. As soon
as I walked through the door, Dacia stuck to my leg and Aerial stuck to my
other leg, so I couldn’t really move. They was walking with me everywhere
I went. And Teagan was just running around. And they had [Mother] sitting
on the couch by herself.
Ms. Underwood further stated:
Two weeks before the removal, the mother was very angry, and that was the
first time, since I began working with her, have I seen that side of her. And I
asked her was everything okay, and she said yes. But she was like very, very
angry that date.
And then two weeks later, I got the phone call from the sister, and she
had stated that she has not been taking her medication. Actually, [Mother’s
mother] knew that she was not on her medication but she did not call the
department.… [Mother’s] mother knew that she was not taking her medication.
She stated that she tried several times to get her to start back on her medication
but she would not take it.
On the day that the trial home visit was terminated, Mother told Ms.
Underwood that her psychiatrist had told her she did not need the medication anymore. Ms.
Underwood further described:
The mother was not on her medication; she had just assaulted her own mother.
We went over to the mother’s apartment, the curtains, the - - all her curtains
were torn down, all the children’s clothes was all over the apartment. It looked
like someone just went in the refrigerator and just poured food all through the
house.
And just observing that and observing the children’s behavior, how the
children wouldn’t even go to the mother because they were just stuck to me,
I had to just literally hold the kids by the hand and they had to come with me,
so just my observation, that was not the best place for the children during that
time.
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Mother was charged with assault on her mother and Father’s sister. Ms. Underwood does
not know what happened with those charges.
Ms. Underwood took the Children back into State custody. Since then Mother
has not visited the Children or had any contact with them. DCS has not prevented Mother
from seeing the Children.
Ms. Underwood testified that since the Children were taken back into State
custody, Mother has been in and out of jail in different places, has not had housing or
employment, and has remained off of her medication. Mother also has not attended parenting
classes. Ms. Underwood stated that Mother is not capable of supporting herself or the
Children at this time.
The Children are in a foster home, which Ms. Underwood testified is a
potential adoptive home. Ms. Underwood testified that the Children are “very bonded to
their foster family ….” The foster parents have an adult child who is married and no longer
living with them and an 18 year old daughter. These adult children get along well with the
Children and Ms. Underwood stated they “call [the Children] their little sister and little
brother ….”
Prior to placing the Children in the foster home, DCS asked Mother’s mother
if she would be willing to take the Children, and she declined. The Children had been in
custody for almost three years by the time of trial . Ms. Underwood agreed that the Children
were placed in foster care because Mother had instability in her housing and mental health
and that at the time of trial Mother still had instability in her housing and mental health. The
Children do not have any special educational or medical needs. Ms. Underwood does not see
any chance for permanency for the Children with Mother.
Ms. Underwood stated:
Just the mother has called me two weeks. She left me a voice message and it
just said that “These are my children, my children, my children, and call me
back.” But I don’t have caller ID, so I don’t have a way to reach her. So she
did leave them two voice messages in the last two and a half weeks.
Ms. Underwood testified that during the second of those two voice mail messages Mother
said “‘This is [Mother], call me.’ But she didn’t leave a number again.” Mother knows how
to contact DCS but has not visited Ms. Underwood in Ms. Underwood’s office since the
Children were removed from her custody. Ms. Underwood testified that in the month prior
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to trial Mother sent the Children a box of arts and crafts, but has not sent any money or
anything else for the Children.
Ms. Underwood gave a timeline since the removal of the Children after the
terminated trial home placement stating:
April of 2012, the mother was admitted to Moccasin Bend because we called
Crisis for her that day, so the police escorted her to Joe Johnson, and then from
Joe Johnson, she went to Moccasin Bend.
She was released on April the 20th. She was given a shot in her arm at
Moccasin Bend. And she was supposed to have went back every three weeks
because she was set up through Joe Johnson, every three weeks to get the shot
for her medication.
On 4/28, she was at Silverdale for the assault on her mother. I don’t
know when she was released. Then she went back to jail on May 31st in
Pikeville for the assault on the father’s sister. That’s when I found out that she
was pregnant. I don’t know when she was released. But I didn’t have no
contact with the mother until August the 18th when she showed up to court on
the petition for her children. She did show up for that.
Then she went back to jail in August for a failure to appear. And I
think she was released around October 20th, 2011. After that, I found out she
was living at the Community Kitchen. She had contacted me around October
20th to let me know that she was living at the Community Kitchen and she
wanted her children to come and live with her. And I did explain to her that
we could not place the children we [sic] her at the Community Kitchen.
I know, January 25, 2012, she was back in Moccasin Bend due to she
took a taxi cab to the foster home because she was going to get her children
and the cab driver pulled over and he realized she didn’t have no money to pay
him, so the police was called for that incident also.
And then Moccasin Bend ended up putting her in a hotel around
February, and after that, she was released. And then she came to court, then
Moccasin Bend held her until she had the baby in April. So it’s been very hard
to keep in contact with [Mother].
Ms. Underwood testified that Mother gave the baby up for adoption.
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Ms. Underwood agreed that Mother was capable of parenting when she was
compliant with her medication. She stated that medication compliance and housing were
Mother’s biggest obstacles.
Mother testified at trial and admitted that she received mental health treatment
and that medication was prescribed for her. Mother also received counseling. She stated this
happened before the Children were taken into State custody. When asked where she was
living when the Children were first removed from her custody, Mother stated:
Dunlap. We went out and pay our rent, and we leave whenever we get ready
to - - we’re traveling right now around the other states. I plan on moving to
Florida, attending school in Florida. I have a letter from them. We’re going
to say [sic] in Georgia, Tennessee, staying all over.
Mother denied living in a car when the Children were first removed from her custody. She
stated that she was staying with her uncle Jason Brady whom she stated was 34 years old.
Mother testified that after the trial home placement was terminated, she was
treated at Mark Savant and then released to go to jail in Sequatchie County. After her release
from jail Mother stayed with Father’s brother for a couple of weeks. She then went to
Chattanooga to stay at the Mission. Mother testified that she has been there on and off for
two years.
Mother testified that she has seizures. She stated: “I just started since the kids
come back home. I had a seizure in front of them, and I didn’t want them to get caught up
with that.” Mother also testified that she recently was diagnosed with schizophrenia.
Mother stated she was being treated for her mental health issues at Silverdale by “the psych
doctor there.” Mother testified that at the time of trial she was taking the medications
Cogentin and Haldol.
Mother was asked about her job at a convenience store, and she testified she
worked there for about seven months. When asked why she left that job, Mother stated:
I was scared to death. I actually used the restroom on myself while I was at
work because I was so scared. I don’t have somebody to look after me, and
everybody was and thought I had been on drugs, so did the father, and he owed
me money for child support. He was out spending money on more drugs.
People get messed up sometimes. He approached me. When I first met
him, I was at the store, my first pay check. He approached me from behind.
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So we had a few kids. And I separated. When I got pregnant, after conception
of my third kid, we separated, and finally he got took to jail.
Mother was asked what she was scared of at work and she stated: “I was scared
always. I was scared in my own home.… I was scared of guns and violence.” Mother was
asked if there was something about her job that scared her, and she stated: “It was right
across the street from my own home. I didn’t feel safe in my own home, either.” Mother
then was asked if an incident happened at work, and she stated: “The neighbor molested my
mother, and she’s sort of understanding things right now. She was born with scoliosis, and
I’m just looking at my kids like they’re safe and issues of health along the way.”
Mother stopped working at the convenience store in March or April of 2011
and has not had a regular job since then. Mother testified that she does “side jobs to get by.”
Mother was asked if she had any means of paying child support, and she stated:
Yes. Judge Owens told me to hang out with my family right now, my sister
and my mother, my immediate family. So I did that and my sister and I has
problems, too. She’s been to Valley. She run off with my W-2, that was
taking my taxes for child support. And if it got filed, then I wouldn’t have
been in jail.
I was hanging out with them. She overdosed on meth and she died, and
I was the one that had to wake her up. So I try to stay away from them, but the
judge said no, not yet.
Mother testified that at the time of trial she was incarcerated “[o]ver child
support,” and had six months more to serve. When asked how much she owed in child
support, Mother stated: “I’m guessing about $5,000.”
Mother was asked about what happened on the day the trial home placement
was terminated, and she stated:
Well, I went over to my mom’s house and she - - my sister was there, and my
sister wanted to play with the kids. And I don’t let her play with the kids,
because when I was a little girl, my mom found me undressed under the covers
with her. And she said if it happened again, she would tell my dad.
Next thing I knew, my dad was dead. And I was with my sister all
alone because of my mom can’t handle stuff like that. She’s too sick. I don’t
know why my father is dead, but she’s not going to kill my mother.… She
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called the law, my mom did, and said I choked her. I wouldn’t lay hands on
my mother, unless she was sick, and I tried to help her.
When asked if she thought that in February of 2011 she was able to parent the
Children, Mother stated:
Most definitely not, but I loved my children and wanted to see them.…
Because I was on the wrong type of medicines, they couldn’t find something
that works for me. I am 99 percent diabetic. And if I stay in places like jail or
stay in places where someone else is taking care of me, it worsens my
symptoms. And I know how it feels to ride around in a wheelchair or watch
people, at least, so I try to do everything so I don’t worsen my health.
Mother was asked if someone told her she was on the wrong medication and she stated:
Yes. I had a lawyer, he paid for a room for me for a month. And they brought
me my mail, they checked my mail for me. And I had people doing things for
me, and they brought it to me, and it wasn’t my lawyer. The first thing I heard
from him. And I didn’t even get to open it. Rushed me to the hospital, said
I was going to the hospital right now.
Mother was asked what she thought the biggest obstacle was to her working
a permanency plan and she stated:
Right now, if I have any plan to go by, it’s going to have to be strictly
everybody has to be doing their job; they can’t leave me laying somewhere for
three weeks and not come back and check on me when they’re told, because
my mind - - I had a car wreck, and the doctor told me I would never be the
same, forget things with me.
Like after three weeks, you come back to my door, I think you’re a
stranger. I don’t live in the nicest places in town. I live in a safe place to me,
where I can keep my kids safe.
Mother was asked if she would be able to parent now, and she replied: “Most
definitely not.… I’m on the verge of having a seizure.” When asked if she thought she
would be able to parent in the future, Mother stated:
Yes, ma’am. My Doctor, when the kids got took out of the home, they said I
needed a mental evaluation. So I went to it. The guy said I was in fair
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condition, I did not need any medicine, I did not need anything, but maybe
counseling on my own.
So I went home to my mother. All he gave me was a business card, and
I gave it to my mother. She said, No, you need some medication. I’m calling
the caseworker. She called the caseworker, and they come and picked the kids
up.
Mother testified that the foster mother would not allow her even to call the
Children. Mother stated: “she threatens me with jail issues.” When asked how many times
she had tried to call the Children, Mother stated: “Numeral, more than a hundred.” When
asked if she had tried to see the Children, Mother stated: “She will not allow that. I’ve not
got in a car and went to her house because she threatens to call the law and stuff on me.”
Mother testified that she has contacted DCS numerous times.
Mother was asked if she knew any reason why the foster parents should not
adopt the Children, and she stated:
Well, she already had them put to sleep. They believe in aesthetics (sic) and
used overstrength and had them put to sleep. Took them for a general
checkup. It was a party for them they had in Georgia, and that’s why we left.
They passed. She said she got so excited because she passed the denial
[sic] checkup at the Erlanger. They had cavities, but she passed. And she
didn’t pass her hearing test right then, but she said she would give her one in
school, too. If anything, it was her ears, not her teeth bothering her. They
went right in to put her to sleep. And hopefully the doctors at Erlanger will
check her ears.
Mother agreed that she had concerns with the medical treatment the Children were receiving
and stated: “I took her to Dr. Lazer. He said his wife had a problem with overreacting to
pain. I don’t know why a doctor would tell me his personal problems, but that’s where their
doctor is now, his wife.”
When asked if she thought the Children were loved and taken care of in the
foster home, Mother stated:
Takes a lot of love to see your children being loved and being not loved, riding
without car seats, falling out of the van on their head. After you fall three
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times, you are picked up, and you’re going to quit being clumsy, as long as
you’re being watched.
She’s fat, she’s overweight, and she has a problem with obesity, and
she’s ashamed of it.
Mother stated: “I have a home for my kids. We’ve been home about 30
minutes, all of us. They know where our home is, when we get there. We stay on the road
traveling. Dad said we are always welcome at home.” Mother acknowledged she was
speaking of a residence off of East Valley Road in Sequatchie County and then stated: “I
don’t go home very often. I’ve been robbed very often staying there on the street.”
Mother admitted that she has not seen the Children since the trial home visit
was terminated. Mother has been in three different jails in Sequatchie County and Bledsoe
County since 2011. Mother stated that she had spent three months in jail since April of 2011.
About being in jail, Mother testified:
I got in the wrong crowd across the street. That’s where I end up, worked in
a Krystal Restaurant, and the family had a problem with that, and they’re
coming every day with the questions. I don’t know why they have a problem.
That’s the backsliding, because they’re the Catholic way home.
Mother testified that while not in jail she stayed in her house which her father
owned. Mother stated: “I go visit and get everything I need. All I would need was a fresh
plate of food, and he sends me on my way.” Mother was asked where she goes when her
father sends her on her way, and she stated: “Back to see him. I take a long tour and go back
and meet up with him.… Where you find a place to calm down at and make it safe.… I was
awarded a motel. I was staying out in the woods.” Mother admitted that she was staying in
the woods in a tent. Mother also admitted that she does not talk to her father very often, but
insisted that he had told her she could “come home whenever I wanted.”
Mother testified that since April of 2011 she has worked cleaning houses and
further stated: “I did that for about three months, and three months of cleaning houses got me
where I was today. I didn’t get picked up for a warrant. Like I said, I was scared to death,
and he took me to jail. So I got a place to stay.” Mother was asked if she thought jail was
a good place to stay and she stated: “No. Jail is not my idea of the place to stay, when you
left methadon clinics, clinical societens (sic), leave the jail after they’ve been charged with
manufacturing meth, then, yeah, I will stay there and do some time.” Mother was asked who
she was staying with that got charged with making meth, and she stated: “I was not staying
with anyone. But you do get rides with them to take my children places, the state does. I sit
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back and watch. That’s why I’m so sick.” Mother then was asked if it was the State’s fault
that she has mental problems and she stated: “Yes, my mom’s condition, can’t take care of
three kids driving downtown. She walked out and she fell apart.”
Mother was asked about having a job and she insisted that she had the ability
to support herself. When asked how she would support herself, Mother stated: “I take a
bath.” Mother was asked how she earns money to feed herself, and she replied: “Through
taxes.” Mother was asked if that was how she would continue to support herself when she
got out of jail, and she stated: “If I’m stole from, yes.”
Mother was asked if the Children should be returned to her immediately and
she stated: “No, sir, I cannot take care of them at this point. I feel another seizure coming
on. If they’re immune to that, they’ll get the same symptoms I have and have a seizure, too,
and have to fight it.” Mother was asked if she was mentally unable to function without her
medication, and she stated: “That’s wrong. The doctor told me it was best for me not to be
on meds.” When asked if she would take her medication if the Children were returned to her,
Mother stated: “If a doctor told me to, yes, I would take medication.”
When asked if she did drugs with Father, Mother stated: “I thought it was
insulin. He smokes it.” Mother admitted that she smoked drugs “[h]owever [Father] give
it to me. He usually give it to me in a hot tube.” Mother was asked if she would go back and
live with Father, and she stated:
No. I stayed with him to take care of his sister’s kid. He had spina bifida, and
he had AIDS set up in his back, so he got nasty. I had to clean it up. I made
it to the hospital where he was dying. I saw the judges walk out of the room,
so I just let him die.
Mother was asked if her living situation had been stable, and she stated: “Yes,
I have been stable since I was seven years old.” Mother was asked if she would be in a
position to take the Children if she were released from jail that day, and she stated: “Yes.…
Yes. And I don’t talk to strangers.” Mother, however, agreed when asked that she was not
medically stable. She was asked what she believed the Children needed, and she stated:
As for my children, is to have a mother that can take care of them. Right now
I’m not medically stable, and the doctor would tell you that. I don’t know
why, but I could just have somebody go to the doctor, tell me if I needed help,
to just ask that. And I asked, and no one called help for me.
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As to whether she had ever applied for disability, Mother stated: “Yes, I have.
I had an appointment on the 19th of June to John McMahon, and I come to jail on the 18th.
I had a warrant on me so I was kind of scared, so I decided to go to jail.” Mother was asked
about her testimony that she stayed at Mission for the last year and a half given that her home
was in Sequatchie County, and she stated: “Because I’m planning to go to Chattanooga State.
And everytime I get in, I get robbed. I don’t even have my own shoes from the jail. I had
to borrow shoes.”
After trial, the Trial Court entered its Termination of Parental Rights and Final
Decree of Complete Guardianship on August 14, 2012 terminating Mother’s parental rights
to the Children after finding and holding, inter alia:
(A) Respondent, [Mother], has failed to comply in a substantial manner
with the statement of responsibilities set out in periodic foster care plans
prepared for and signed by said Respondent, following the subject children
being found to be dependent and neglected by the Juvenile Court of Hamilton
County. Children’s Services has explained to Respondent [Mother], those
reasonable responsibilities, which are directly related and aimed at remedying
the conditions, which necessitate foster care placement. Specifically, one of
the most important tasks of the Respondent’s permanency plan was for her to
continue her mental health treatment all [sic] follow all recommendations as
well as take all prescribed medications and continue medication management.
The mother was also supposed to accept and cooperate with case management
services from Joe Johnson Mental Health Center.
Initially, the Respondent was in substantial compliance with her
permanency plan and the Department placed the subject children back in her
physical custody on a ninety (90) day trial home visit which started on
February [5], 2011. The trial home visit had to be terminated on April 12,
2011 due to the fact that the mother stopped taking her medication and became
violent again. The Respondent has been hospitalized at Moccasin Bend
Mental Health Institute in August 2008 and was diagnosed with Psychotic
Disorder. At the time she was hospitalized in August 2008, the mother was
found walking on the freeway with her two (2) oldest children and was
pregnant with her third child. The mother reported that she thought people at
the shelter were poisoning her food and trying to steal her children. At the
time of her discharge on August 12, 2008, it was recommended that the mother
take Risperdal and that she have follow-up mental health treatment at Joe
Johnson Mental Health Center. Her prognosis was guarded.
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The mother was hospitalized at Moccasin Bend again on December 11,
2009 and was admitted from Joe Johnson. She was referred at that time for
bizarre behavior and the nurse practitioner noted that the mother was under the
belief that she had no mental health issues.
Currently, the Respondent is not in compliance with her plan and has
not visited with the subject children since her trial home visit was terminated on April
12, 2011.
(B) [The Children] have been removed by order of a court for a period of six (6)
months. The conditions which led to the removal still persist or other conditions persist
which in all probability would cause [the Children] to be subjected to further abuse and
neglect and which, therefore, prevent the children’s return to the care of Respondent.
There is little likelihood that these conditions will be remedied at an early date so that the
children can be returned to Respondent in the near future. At the time of their removal in
December 2009, the mother’s mental illness was negatively affecting her ability to parent.
The mother was living with the children in a car at the time of the referral and the
Department of Children’s Services and Soddy Daisy Police Department worked together
to furnish the family with a motel room. The mother also failed to comply with
preventative services and the children had to be removed. At one point in the case, the
mother was doing really well and was in substantial compliance with her permanency plan
and the children were placed on a trial home visit with her on February 5, 2011. Shortly
thereafter, the mother started to deteriorate again. She lost her job; got evicted from her
housing; ceased taking her prescribed medications; and was arrested and incarcerated for
assaulting family members. The children were removed from the trial home visit and
placed back into their foster home on April 12, 2011. Since that time, the mother has not
visited with the children or paid any child support and is currently homeless and
unemployed. These issues, along with her failure to maintain her mental health treatment
make the mother unable to provide the subject children with a safe and suitable living
environment.
4. Pursuant to T.C.A. § 36-1-113(i), it is for the best interest of the subject child
and the public that all of the parental rights of Respondent, [Mother], to [the Children] be
forever terminated and that the custody, control and complete guardianship of said child
should now be awarded to the State of Tennessee, Department of Children’s Services with
the right to place said child for adoption and to consent to any adoption in loco parentis,
in that
(a) Respondent, [Mother], failed to make any adjustment of circumstance, conduct
or conditions to make it safe and in the children’s best interest to be placed in the care of
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said Respondent. The mother did make significant progress for a while, but during her
trial home placement in 2011, stopped taking her medication to treat her mental illness and
began a rapid decline. Since the trial home visit with the children ended in April 2011, the
mother has had no contact with the children or Department and her current living
conditions are unsafe.
(b) Respondent, [Mother], failed to effect a lasting adjustment of her
circumstances after the state has made reasonable efforts to help her for such duration of
time that lasting adjustment does not reasonably appear possible. The Department has
offered the mother a large variety of services to help her be able to safely parent and the
mother has repeatedly shown that she is unable to hold it together for any significant period
of time.
(c) Respondent, [Mother], has not maintained regular visitation or other contact
with the children.
(d) A change of caretakers and home is likely to have a highly negative effect on
the children. The children are currently placed in an adoptive home and have been placed
there since December 11, 2009. The children were removed from the foster home when
they were placed back in their mother’s physical custody from February [5], 2011 until
April 12, 2011. The children were returned to the foster home on April 12, 2011 and have
been there ever since.
(e) Respondent [Mother], or someone living with them, has shown brutality,
abuse or neglect toward the children. Due to the mother’s failure to take her prescribed
medications at the time of removal, the children were living with her in a car in the winter.
(f) Respondent [Mother’s] present mental or emotional status would be
detrimental to the children or prevent the Respondent from effectively providing safe and
stable care and supervision for the child. The Respondent functions well when she is on
her medication, but since April 2011, she has not been taking her medication or receiving
mental health treatment and she is currently homeless and jobless.
Mother appeals to this Court the termination of her parental rights to the Children.
Discussion
Although not stated exactly as such, Mother raises one issue on appeal: whether the Trial
Court erred in finding and holding that DCS made reasonable efforts to assist Mother while the Children
were in State custody.
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Our Supreme Court reiterated the standard of review for cases involving termination of
parental rights stating:
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 528, 530 (Tenn. 2006).
In Department of Children’s Services v. D.G.S.L., this Court discussed the relevant burden
of proof in cases involving termination of parental rights stating:
It is well established that “parents have a fundamental right to the care, custody, and
control of their children.” In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988) (citing
Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972)). “However, this
right is not absolute and parental rights may be terminated if there is clear and convincing
evidence justifying such termination under the applicable statute.” Id. (citing Santosky v.
Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982)).
Termination of parental or guardianship rights must be based upon a finding by
the court that: (1) the grounds for termination of parental or guardianship rights have been
established by clear and convincing evidence; and (2) termination of the parent’s or
guardian’s rights is in the best interests of the child. Tenn. Code Ann. § 36-1-113(c).
Before a parent’s rights can be terminated, it must be shown that the parent is unfit or
substantial harm to the child will result if parental rights are not terminated. In re
Swanson, 2 S.W.3d 180, 188 (Tenn. 1999); In re M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn.
Ct. App. 1998). Similarly, before the court may inquire as to whether termination of
parental rights is in the best interests of the child, the court must first determine that the
grounds for termination have been established by clear and convincing evidence. Tenn.
Code Ann. § 36-1-113(c).
Dep’t of Children’s Servs. v. D.G.S.L., No. E2001-00742-COA-R3-JV, 2001 Tenn. App. LEXIS 941, at
**16-17 (Tenn. Ct. App. Dec. 28, 2001), no appl. perm. appeal filed. Clear and convincing evidence
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supporting any single ground will justify a termination order. E.g., In re Valentine, 79 S.W.3d 539, 546
(Tenn. 2002).
The Trial Court terminated Mother’s parental rights to the Children on the grounds of
substantial noncompliance with the permanency plan pursuant to Tenn. Code Ann. § 36-1-113(g)(2) and
persistent conditions pursuant to Tenn. Code Ann. § 36-1-113(g)(3). As this Court explained in In re:
R.L.F.:
Termination on the ground of substantial noncompliance with the permanency
plan implicates the Department’s obligation to demonstrate that it made reasonable efforts
to reunite a child with his parent. Tenn. Code Ann. § 37-1-166(b). Where the Department
seeks to terminate parental rights on a ground that implicates the Department[’]s obligation
to use reasonable efforts to make it “possible for the child to return safely to the child’s
home,” Tenn. Code Ann. §§ 37-1-166(a)(2), - 166(g)(2), those reasonable efforts must be
proved by clear and convincing evidence. In re: B.B., No. M2003-01234-COA-R3-PT,
2004 WL 1283983, at *9 (Tenn. Ct. App. June 9, 2004) (citing In re: C.M.M., 2004 WL
438326, at *7-8). Thus, the Department had the burden to prove by clear and convincing
evidence that it exercised reasonable care and diligence to provide services reasonably
necessary to meet Mother’s needs to assist her to fulfill her obligations under the
permanency plans. In re: Valentine, 79 S.W.3d at 546; In re: C.M.M., 2004 WL 438326at *8; Tenn. Code Ann. § 36-1-113(c). This burden required that the Department present
sufficient evidence to enable us to conclude, without serious or substantial doubt, that the
efforts were reasonable under the circumstances. In re: Valentine, 79 S.W.3d at 546; In
re: C.D.B., 37 S.W.3d 925, 927 (Tenn. Ct. App. 2000); see Walton v. Young, 950 S.W.2d
956, 960 (Tenn. 1997).
The goals and requirements set forth in permanency plans may not be arbitrary or
unreasonable. To the contrary, they must be directed toward remedying the conditions that
led to the child’s removal from the parent’s custody. In re Valentine, 79 S.W.3d at 547;
In re M.J.B., 140 S.W.3d 643, 656 (Tenn. Ct. App. 2004); In re L.J.C., 124 S.W.3d 609,
621 (Tenn. Ct. App. 2003).
“The success of a parent’s remedial efforts generally depends on the
Department’s assistance and support.” In re Giorgianna H., 205 S.W.3d 508, 518 (Tenn.
Ct. App. 2006). Accordingly, the Department’s employees have an affirmative duty to
utilize their education and training to assist parents in a reasonable way to address the
conditions that led to the child’s removal and to complete the tasks stated in the plan. In
re Giorgianna H., 205 S.W.3d. at 519; In re J.L.E., No. M2004-02133-COA-R3-PT, 2005
WL 1541862, at *14 (Tenn. Ct. App. June 30, 2005); In re C.M.M., 2004 WL 438326,
at *7; In re D.D.V., No. M2001-02282-COA-R3-JV, 2002 WL 225891, at *8 (Tenn. Ct.
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App. Feb.14, 2002). This duty exists even if the parent does not ask for assistance. In re
C.M.M., 2004 WL 438326, at *7. The importance of the Department’s role in this regard
has been emphasized by this court on numerous occasions. In re B.L.C., No.
M2007-01011-COA-R3-PT, 2007 WL 4322068, at * 8 (Tenn. Ct. App. Dec. 6, 2007) (no
Tenn. R. App. P. 11 application filed); In re C.M.M., 2004 WL 438326, at *7 (stating that
“[i]n many circumstances, the success of a parent’s remedial efforts is intertwined with the
efforts of the Department’s staff to provide assistance and support”); In re J.A.W., No.
M2007-00756-COA-R3-PT, 2007 WL 3332853, at *4 (Tenn. Ct. App. Nov. 8, 2007); In
re Randall B., Jr., No. M2006-00055-COA-R3-PT, 2006 WL 2792158, at *5-6 (Tenn.
Ct. App. Sept. 28, 2006).
Reasonable efforts are statutorily defined as the “exercise of reasonable care and
diligence by the department to provide services related to meeting the needs of the child
and the family.” Tenn. Code Ann. § 37-1-166(g)(1) (emphasis added). The factors the
courts are to use to determine reasonableness include: (1) the reasons for separating the
parents from their children, (2) the parents’ physical and mental abilities, (3) the resources
available to the parents, (4) the parents’ efforts to remedy the conditions that required the
removal of the children, (5) the resources available to the Department, (6) the duration and
extent of the parents’ efforts to address the problems that caused the children[’]s removal,
and (7) the closeness of the fit between the conditions that led to the initial removal of the
children, the requirements of the permanency plan, and the Department[’]s efforts. In re
Tiffany B., 228 S.W.3d 148, 158-59 (Tenn. Ct. App. 2007) (footnote omitted) (emphasis
added) (citing In re Giorgianna H., 205 S.W.3d at 519).
In re: R.L.F., 278 S.W.3d 305, 315-17 (Tenn. Ct. App. 2008).
Additionally, as this Court stated in State of Tennessee, Department of Children’s Services
v. S.M.D.:
The State “must make reasonable efforts to preserve a family before seeking to
terminate parental rights.” In re: Jeremy D. and Nathan D., No. 01-A-01-9510-JV-00479,
1996 Tenn. App. LEXIS 292, at **7-8, 1996 WL 257495, at *3 (Tenn. Ct. App. May 17,
1996), no appl. perm. appeal filed. However, “[r]eunification of a family is a two-way
street, and the law does not require DCS to carry the entire burden of this goal.” In re:
R.C.V. and O.V., No. W2001-02102-COA-R3-JV, 2002 Tenn. App. LEXIS 811, at *39,
2002 WL 31730899, at *11 (Tenn. Ct. App. Nov. 18, 2002), no. appl. perm. appeal filed.
State of Tennessee, Department of Children’s Services v. S.M.D., 200 S.W.3d 184, 197-98 (Tenn. Ct. App.
2006).
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In her brief on appeal, Mother argues, in large part, that DCS failed to assist her after the
terminated trial home placement, in part, by failing to contact Mother while Mother was hospitalized at
Moccasin Bend and “incarcerated at various institutions.” The record shows that Mother was admitted to
Mocassin Bend when the trial home placement was terminated because DCS made the phone call to set
it up and also shows Mother was receiving mental health assistance at Mocassin Bend. DCS also set
Mother up for medication management through Joe Johnson. It is unclear what DCS could have done to
assist Mother during Mother’s repeated incarcerations. Furthermore, the record shows that DCS had
difficulty keeping in contact with Mother because Mother did not keep DCS apprised of her whereabouts
or how to reach her and because Mother was in and out of jail in more than one county. Mother left some
voice mail messages for the caseworker, but never left a number where she could be contacted.
The record on appeal shows that the Children were taken into State custody because
Mother was not taking her medication and Mother and the Children were living in a car. DCS was aware
of Mother’s mental needs and took steps to assist Mother in getting evaluated and appropriately medicated.
The record shows that Mother had some family members who also were assisting her, specifically her
mother who was assisting Mother with childcare during the trial home placement. The record also shows
that with DCS’s assistance, Mother made an attempt to work the permanency plans and was successful
for a time. This success led to DCS placing the Children with Mother in the trial home placement.
Unfortunately, the record also shows that the duration of Mother’s success was short-lived. The trial home
placement was disrupted and terminated because Mother stopped taking her medication and assaulted
family members. The record shows that the requirements of the permanency plans were targeted toward
remedying the conditions which led to the Children being taken into State custody. The record shows that
Mother was able to parent the Children with some assistance when she was taking her medications.
Unfortunately, Mother chose to stop taking her medication, which rendered her unable to
parent the Children. “Reunification of a family is a two-way street …” and while Mother carried her
burden for a short time, Mother has remained off of her medication and has been in and out of jail multiple
times since the trial home placement was terminated. In re: R.C.V. and O.V., No. W2001-02102-COA-
R3-JV, 2002 Tenn. App. LEXIS 811, at *39, 2002 WL 31730899, at *11 (Tenn. Ct. App. Nov. 18, 2002),
no. appl. perm. appeal filed. Mother herself admitted that at the time of trial she was unable to parent the
Children, and the record shows that since the trial home placement was terminated Mother has made no
attempt toward correcting the conditions which led to the Children being taken back into State custody.
Mother has taken no steps to obtain stable employment or housing and instead has engaged in actions
which have led to Mother being incarcerated in multiple jails. Most importantly, Mother continues to
choose to remain off of her medication.
The Trial Court found that grounds for terminating Mother’s parental rights pursuant to
Tenn. Code Ann. § 36-1-113(g)(2) and § 36-1-113(g)(3) had been proven by clear and convincing
evidence. The evidence in the record on appeal does not preponderate against these findings made by the
Trial Court by clear and convincing evidence. The Trial Court also found that clear and convincing
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evidence had been proven that it was in the Children’s best interest for Mother’s parental rights to be
terminated. The evidence in the record on appeal does not preponderate against these findings made by
the Trial Court by clear and convincing evidence. The Trial Court further found that DCS made reasonable
efforts to help Mother make lasting adjustments to her circumstances and conduct. Given the evidence
before us, we have no “serious or substantial doubt, that [DCS’s] efforts were reasonable under the
circumstances.” In re: R.L.F., 278 S.W.3d at 316. In light of all the evidence in the record before us, the
evidence does not preponderate against these findings made by the Trial Court by clear and convincing
evidence. We, therefore, affirm the termination of Mother’s parental rights to the Children.
Conclusion
The judgment of the Trial Court is affirmed, and this cause is remanded to the Trial Court
for collection of the costs below. The costs on appeal are assessed against the appellant, Sheila W.
_________________________________
D. MICHAEL SWINEY, JUDGE
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