In Re: Sierra D.M. ( 2012 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs December 14, 2011
IN RE: SIERRA D.M., ET AL.
Appeal from the Juvenile Court for Johnson City
No. 37,923; 37,924 Sharon Green, Judge
No. E2011-01663-COA-R3-PT-FILED-JANUARY 25, 2012
The State of Tennessee Department of Children’s Services (“DCS”)1 filed a petition seeking
to terminate the parental rights of Susan M.M. (“Mother”) and Mark M. (“Father”)2 to the
minor children Sierra D.M. (“Sierra”) and Hunter Z.M. (“Hunter”) (or collectively “the
Children”) pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1) and (g)(3). After a trial, the
Juvenile Court3 entered its order on August 17, 2011 finding and holding, inter alia, that
clear and convincing evidence existed to terminate Mother’s parental rights to the Children
under Tenn. Code Ann. §§ 36-1-113(g)(1) and (g)(3), and that clear and convincing evidence
existed that the termination of Mother’s parental rights 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 H ERSCHEL P. F RANKS,
P.J., and J OHN W. M CC LARTY, J., joined.
Holly L. Booksh, Johnson City, Tennessee, for the appellant, Susan M.M.
Robert E. Cooper, Jr., Attorney General and Reporter; Bill E. Young, Solicitor General; and
Lindsey O. Appiah, Assistant Attorney General, for the appellee, State of Tennessee
1
The Children’s guardian ad litem, Russell Kloosterman, filed the petition and was joined by DCS.
For purposes of simplicity only, we refer to DCS as the petitioner.
2
Father surrendered his parental rights to the Children on May 23, 2011. The time to revoke the
surrender has passed, and Father did not make an appearance in this appeal.
3
The case was filed originally in the Juvenile Court for Hamblen County, but later was transferred
to the Juvenile Court for Johnson City.
Department of Children’s Services.
Russell J. Kloosterman, Johnson City, Tennessee, Guardian Ad Litem.
OPINION
Background
The Children were brought into State custody in October of 2003 and were
adjudicated dependent and neglected. The Children have remained in State custody since
that time. Sierra was five years old and Hunter was twenty-two months old when they were
taken into State custody. The petition seeking to terminate Mother’s parental rights was filed
on July 20, 2010. The case was tried over several days in May and July of 2011. At the time
of trial Sierra was thirteen years old, and Hunter was nine years old.
Mother testified at trial. In addition to the Children, Mother has two adult
children. When asked, Mother admitted that the Juvenile Court judge had explained the
definition of abandonment, and the criteria and procedure for terminating parental rights to
her “[q]uite a few times.”
Mother graduated from ETSU in 2009. Mother has two bachelor’s degrees,
one in criminal justice and one in sociology. Mother, however, is not working and has not
worked since 2005 when she was in school. Mother stated that she “worked at Save-A-Lot
Grocery Store for a few months, and then started school, and then I also did some student
worker loans on campus.” The student work was done through a work-study program at
ETSU during July and August of 2005. Mother has not worked since 2005. Prior to 2005,
Mother had worked in Morristown through a temporary agency working in a factory.
When asked, Mother admitted that she has not obtained full time employment.
When asked what types of jobs her college degrees qualify her for, Mother stated: “There’s
quite a few. I could become a police officer, a counselor, a therapist, a corrections officer
in a prison. There’s numerous.” When asked where she has looked for work, Mother stated:
I have, I’m registered with the Career Center. I have my resume posted on-line
on a few of the Monster.com, Yahoo Jobs, places like that.… I am also
registered with, with the Johnson City Press on-line to receive, if they, if a job
that, that meets what I’m looking for, I get emails regarding those.
Mother admitted that she had not tried to obtain employment with the sheriff’s department.
-2-
Mother also admitted that she had done nothing to look for a job during the three weeks
immediately preceding the trial. Mother could not recall looking for work during the four
month period preceding the filing of the petition. Mother has college loans of approximately
$40,000 that she testified are deferred while she is unemployed.
When asked how she supports herself, Mother stated: “I donate plasma, and
I’ve received help from family members.” Mother testified that she smokes about a pack of
cigarettes a day. She testified that the cigarettes cost approximately $3 per pack. Mother
also admitted that a few months prior to trial she treated her adult daughter by taking her to
a country music concert, and that the concert tickets cost around $15 a piece.
Mother claimed that she was involved in a car accident on July 24, 2010, but
did not go to the hospital. She explained: “My treatment was delayed because there was
problems with, to get confirmation from the witness as to whether the other guy’s insurance
company would pay. So treatment was delayed. I did go after that was approved. I went to
Dr. Sam Messimer, chiropractor.” Mother claimed that Dr. Messimer wrote her a note
stating that she could not work, but also stated that Dr. Messimer later released her from
treatment in November of 2010. Mother also claimed that she received first and second
degree burns on her left arm from popping hamburger grease on July 4, 2010, and that she
had to keep her arm covered.
Mother admitted that she is healthy. When asked about disabilities she stated:
“Other than from the car accident, I sometimes still have, you know, problems with my neck
and my back.… From, from that accident, but….”
Mother admitted that she received a settlement from the car accident. When
asked why she had not mentioned this money when she was asked about her income, Mother
stated: “That settlement was months ago, so that wouldn’t be considered income.” When
asked the amount of the settlement, Mother stated: “I can’t remember an exact amount.”
Mother then was asked the approximate amount of the settlement and Mother stated: “I’m
not sure because I had, out of that settlement I had to pay doctor bills.” When pressed for an
answer, Mother stated: “I can’t remember right off.… When things happened, you know,
months ago, I can’t remember the exact amount or approximate amount.” Mother finally
admitted that the settlement was over $10,000, but stated that the settlement was less than
$20,000.
Mother was ordered in 2004 or 2005 to pay child support of $90 per child for
Sierra and Hunter by the Hamblen County Juvenile Court. The Juvenile Court for Johnson
City also ordered Mother to pay child support in the same amount in October of 2009 when
the case was transferred. Mother testified that she was able to pay this child support
-3-
consistently when she was a student at ETSU. Mother testified that between March 20, 2010
and July 20, 2010, the four month period preceding the filing of the petition, she paid
“[a]pproximately $20.00” in child support. Mother, however, admitted that she did not give
DCS anything for the children between March 20, 2010 and July 20, 2010.
When asked if she had paid any child support for Sierra or Hunter since the
petition was filed on July 20, 2010, Mother stated that she had receipts for “[a]dditional gas
that I had to put in my vehicle in order to go to Georgia and back home to see Sierra, food
that we might eat on our visits with Sierra and with Hunter. Additional things that I had
gotten for the kids, you know, for our visits.… And there have been, on one trip to Georgia
Sierra needed some socks, and so I bought her socks.” Since July 20, 2010 Mother has not
given any money or other support to the foster parents for Hunter.
Mother was asked why Sierra and Hunter were removed from her custody in
October of 2003. Mother testified:
Because I was involved with a person at the time, he, and allegations were
made against him from my friend’s daughter of a sexual manner, and because
he was staying at the apartment with the children and I. I assume that they
thought it put the children at risk. And unfortunately at that time, you know,
I did make some bad decisions and believed him over my friend’s daughter.
Once it was established that he was guilty of what he was being accused of, I
cut all ties.
The Children have had three trial home placements with Mother while they
have been in State custody. The first trial home placement occurred in February or March
of 2004. The Children were with Mother for approximately one week. Mother testified that
the children were returned to DCS custody “[b]ecause I was getting evicted, and they said
that Sierra had made a statement about seeing the man that I had been involved with earlier.”
The second trial home placement was in June of 2007, and lasted thirty-one
days. When Mother was asked why the Children were removed from her custody that time,
she stated:
Because of an incident that happened at Food Lion. Sierra’s behavior got out
of control. She wanted, she wanted something, and when she was told no, she
did have a tantrum, and I now know that I handled it the wrong way at that
time. I now know that there are different ways to handle it now.… She started
throwing a fit, throwing a temper tantrum, and I started to walk away. I was
trying to pay for what I was purchasing, and she plopped down on the floor
-4-
and threw her arms around the buggy, scratching her arms and legs, and I
couldn’t get her out. I had to call a friend to come and help me. So he was
able to turn her legs to where I could slide her out from underneath the buggy.
He completed my purchase, and I took Sierra and carried her out to the car,
trying to get her in her seatbelt in her booster seat. And she kept, kept holding
her arms out and I couldn’t get her in her seatbelt.… She did end up with a cut
lip.
Mother was asked how Sierra wound up with a cut lip and she stated: “I don’t know how that
happened.” During the incident Mother called 911. When asked why she had called 911,
Mother stated:
Because I had made numerous phone calls to the case manager in Morristown.
This happened, this happened on a Saturday. I had made numerous calls to the
caseworker to, to try to get some advice or assistance. I had also made phone
calls to my attorney at the time in Morristown and the guardian ad litem in
Morristown and wasn’t able to get a hold of anyone.
Mother denied that the cut lip and scratched legs that Sierra sustained from the incident were
the result of Mother’s actions. Mother testified that Sierra lies a lot.
The third and final trial home placement was in March of 2009. Mother was
asked if she was given any instructions by the Juvenile Court prior to that visit and she stated:
“No physical restraints, no corporal punishment.” The Children were in Mother’s custody
thirty-one days, and then were removed according to Mother because “Sierra was throwing
another temper tantrum, and she made allegations that I ‘child abused her.’” Mother was
asked what actions led to that allegation and she testified:
The actions that contributed to that was that I had placed her in her room, and
was sitting at the door. When I came out of the room, she was laying on her
back, kicking the door, trying to, until I put my foot up against (Inaudible) and
at one point she hit and kicked and slapped me approximately 30 times. At
that point I spanked her on the bottom.
Mother was asked what else occurred and she stated:
During the time that she was throwing a fit, I was on the phone with the in
home service worker, trying to get some kind of assistance. I was able, and at
that point Sierra had calmed down, and then when my dad got there, she
crawled up under Hunter’s bed. He was able to, he just talked to her to get her
-5-
out from under the bed.
Mother admitted that the incident involved a power struggle over a Lego. Mother stated: “I
was in the process of trying to get the kids to go to bed and there was some defiance there
and yes, but since that time, you know, I have, I know that there are other ways that it could
have been handled.”
Mother was asked what she has done since that time to demonstrate that she
can effectively use appropriate discipline techniques, and she stated:
I graduated from ETSU, and the last two semesters that I was in school, I took
some classes that would help me with the children. Child psychology and
adolescent psychology, and through those classes I had learned other
techniques, or others [sic] avenues to handle those types of situations. I have
also been in individual therapy for over a year. I was still participating in that
with Sierra while she was at Inner Harbor. Our communication has, we are
able to talk more openly, and I have a better understanding of, and a better way
of communicating with her about any type of problems that may arise.
When asked about the techniques she has learned, Mother stated: “The ones
about rewards and consequences, timing myself or even myself taking a time out, and
removing myself from situations or something like that, redirecting and, of course, you know,
just talking about whatever the problem might be.” Mother testified that she has had
parenting skills training with counseling “[q]uite a few times” since the children have been
in State custody.
Mother was asked about appropriate discipline techniques for the Children, and
she stated: “Talking with them about what’s causing the situation, offering rewards and
giving them consequences, taking things away from them, time out, grounding them.” When
asked at what age corporal punishment would be appropriate, Mother replied: “I am not
really sure. I mean, corporal punishment should only be used as the last resort. If then.”
When Mother was asked what type of corporal punishment would be appropriate, she stated:
“A swat on their, you know, their bottom. On their hand.” When Mother was asked when
it would be appropriate to use corporal punishment as opposed to other disciplinary
techniques, Mother stated: “I would think if the other things didn’t work. Like I said, as a
last resort if offering rewards or taking away privileges or sending them to their room or
things like that didn’t work, then as a very last resort.” Mother admitted that she probably
recently has used corporal punishment on her two year old granddaughter by slapping the
child’s hand. When asked if she had tried other remedies before resorting to this punishment,
Mother stated: “I can’t recall.”
-6-
Mother testified that she never has been faced with a situation when she would
need to use corporal punishment on Hunter. When asked about corporal punishment with
regard to Sierra, Mother stated that “a lot has changed since corporal punishment was last
thought of with, in regards to Sierra. And I have learned different ways of handling things
when the children would not do as they were asked to do. I have learned different ways to
handle that.” When Mother was asked if she could perceive a time when corporal
punishment would be appropriate on Sierra, Mother stated: “No, not right now because like
I said, I, you know, I know there are other ways that we can communicate and work through
things, but I don’t foresee anything like that coming up.”
Mother admitted that during the trial home placements Sierra became defiant,
acted out, and had temper tantrums. Mother was asked if she had seen any of these behaviors
since Sierra has been at the placement center and she stated: “I haven’t seen any of these
behaviors personally. I have learned about issues that have happened at the center when I
am not around, but I have never, never seen any of these personally.”
Mother testified that she visits with Hunter every week, and with Sierra every
two weeks. Mother was asked if Hunter has been having behavioral issues, and she testified:
He has been having some over the past few weeks where he was, at one point
he had taken some matches from a place at the apartment, and apparently he
was striking the matches at the foster home, and burned a few places in her
carpet. Yeah, and then one incident where he had turned the stove on and put
some napkins in it or something and caused a small fire. And I talked with
him about that, and I suggested that, and I told Amy that, I talked with Hunter
about this and how detrimental a fire [c]an be, and I suggested that maybe I
could call the Fire Department to see if they had some type of educational
videos that were, you know, graphic in order to get Hunter to understand just
how devastating a fire can be. And I am still waiting to hear back from them
on that. I’ve called.
Sierra now is receiving individual therapy from Alicia Hatcher. Sierra had
been receiving therapy from Jason Stevens. When asked, Mother admitted that she had a role
in Sierra having to change therapists from Stevens to Hatcher. Mother stated:
Because I had started to develop feelings for her therapist, Mr. Stevens, and
I disclosed them, with Sierra out of the room. So she was not in the room. I
let him know about that, and of course, he recused himself or stepped down,
and Ms. Hatcher became her therapist again.
-7-
Mother was asked if she had asked Sierra to find out if her therapist was married and Mother
replied: “I did not ask her to ask him. I just made a comment that I wondered if he had a
girlfriend or a wife and she asked him.” When asked if she thought it was appropriate to
pursue a relationship with Sierra’s therapist given Sierra’s issues and the fact that Sierra is
struggling and hurting, Mother replied: “There was never any pursuing, or, or any, I never
acted upon any of those feelings that I had.… I told him that I was, was developing feelings,
but as far as acting upon them by opening flirting or making inappropriate comments to him
or anything like that, I’ve never anything like that and nothing.”
When asked if any of her own actions have contributed to Sierra’s problems
or behaviors, Mother stated:
In the past, there have been some actions, like the last trial home placement,
you know, there was a disruption. Yes, I could have handled things a lot
differently, and I think that did contribute to her being defiant and throwing
temper tantrums. If I would have handled it differently, I am sure that the
outcome would have been different.
Mother was asked specifically about her own actions that may have contributed to Sierra’s
temper tantrum during the last trial home placement, and she stated: “Probably my
unwillingness to cooperate, to compromise because, and not knowing the proper way to, we
could have talked things out instead of, you know, that blown up portion that we did.”
Mother testified that the multiple parenting classes and counseling that she has
received have not been effective for her. Mother believes that the adolescent psychology
class that she took at ETSU was more effective
[b]ecause during that, during that class, I was actually able to remember things
that were, what I had gone through when I was her age and into puberty, you
know, being 15, a teenager, you know. I was able to remember. And I
understand a little bit more of what Sierra was going through.
The Children had therapy together in the past, but there were issues with Sierra
being aggressive toward Hunter. Mother addressed these issues by telling Sierra that Hunter
was younger and smaller than her “and, you know, that she wouldn’t like it and everything,
you know, if he did it to her, or someone did it to her.” When asked if this was effective,
Mother replied: “No, I don’t think.” Mother admitted that Sierra and Hunter have a bad
relationship with one another.
Mother admitted that Sierra has some major problems including violence and
-8-
sexual acting out. When asked about the cause of Sierra’s acting out, Mother stated:
behaviorally, or, in my opinion is that there, here are numerous things that
contribute to her acting out. Being in foster care for over seven years. She’s
also going through puberty and had to go through a lot of changes. I think
that, and you know, it’s, it’s a confusing time for her.
Mother was asked to compare how she would handle things now if the
Children were returned to her versus how she handled things in the past, and she stated:
When they were removed from the, from the trial home pass I didn’t really
know a lot of different ways to handle difficult scenarios such as Sierra getting
up in the morning to get ready for school or things like that and now I do, I do
know those, you know, I mean, I have learned other ways of handling.
Mother was asked how she would get Sierra up in the morning now, and she
stated:
Try to get her up. If, if it was sort of a problem with any, you know, with her
getting up in the mornings to go to school, you know, she would go to bed
earlier the next, you know, the next night. Taking away, maybe offer her a
reward and everything that, you know, we would sit down and discuss, you
know, and find out something that she would really, really like to do or
something that she would like that she could work towards and maybe discuss
with her about, you know, if, if, if you didn’t start getting up in the mornings
and doing your morning routine and getting things together and getting to
school on time on a regular basis and everything, then maybe on the weekend
we can do this or something. Have, you know, short term, not really short
term, things that she could look forward to on the weekend and everything if
she got up and went to school.
Mother was asked how she had handled such situations in the past, and she
stated:
Back then I was trying to get her up out of bed. She refused to get up and I
started taking away things, a lot of, you know, different things that she had like
she’s got an alarm clock and a digital, and she’s got a camera and her cell
phone and a lot of different things so I remember one time she had probably
lost maybe about ten things and it didn’t help. She was still refusing to get up.
-9-
When it was pointed out that the techniques that Mother claimed she would use now were
the same ones that she had used unsuccessfully in the past, Mother stated: “A lot has changed
with Sierra, too. She has gotten older and things that she’s learned on how to handle, handle
things in her therapy along with things that I’ve learned I think both of us combined would
be much better.”
Mother has been in individual therapy since August of 2009. Mother’s
therapist is Polly Yarling. Mother was asked what types of things she has identified during
therapy with regard to her own actions that may have contributed to Sierra’s behaviors and
Mother stated: “I can’t recall.” Mother testified that she has had two psychological
evaluations, one done in 2002 and one in 2006. When asked what the diagnoses of the
evaluations were Mother stated: “I can’t remember. I don’t have that with me.” Mother
admitted that she has a copy of the 2002 evaluation, but stated that she did not provide a copy
of the evaluation to her current therapist and could not recall if she had provided a copy to
any of her past therapists. Mother could not recall discussing the 2002 evaluation with her
therapist. She stated: “This is before the children were brought into custody and before the
incident between Sierra and [Sierra’s older sister]. So I didn’t feel that it was relevant.”
Mother did provide her therapist with a copy of the more recent evaluation, but could not
remember discussing it with the therapist.
Mother participated in two parenting assessments done by Compass Care
Alliance in the year prior to trial. The first of those assessments never was completed and
Mother testified this was because the person conducting the assessment left the employment
of Compass Care Alliance. Dr. Angelopoulos completed the second parenting assessment.
Mother read from Dr. Angelopoulos’s parenting assessment and testified that it made
recommendations such as:
Completing anger management program. Participate in all recommended
metal health treatment if indicated via an intake process with a qualified
mental health professional. Parent training sessions including an ongoing
group designed to provide support and strengthen newly developed skills.
Obtain and maintain full time employment. Spend time focused and directed
time with Hunter in order to facilitate a proper bond between them and
participate with behavior analyst or other qualified individual in behavior
management skills to lean to better handle Sierra’s specific, special behavioral
health needs. Indicates that it may benefit for parenting education and number
8 is specialized assessment regarding her sexual beliefs and behaviors as it
relates to the children.
Mother testified that she has addressed “quite a few of these.” Mother testified that she
-10-
completed an anger management program in the past, but has not completed one since the
parenting assessment was done. When asked if she thought that she has an anger
management problem, Mother stated: “No.” When asked if she was paranoid, Mother stated:
“No, I’m not paranoid except, depending on the situation. I wouldn’t say it was paranoia.”
Polly Yarling is a licensed clinical social worker whom the parties stipulated
is an expert in the field of child and family development, and family therapy. Ms. Yarling
had treated Mother since August of 2009. She sees Mother for individual therapy every two
weeks and, at the time of trial, had seen Mother a total of forty-one times. Ms. Yarling
diagnosed Mother with a personality disorder not otherwise specified with narcissistic traits.
Ms. Yarling diagnosed that Mother is functioning at a moderate level in her daily life. Ms.
Yarling testified that personality disorders are “pervasive and, and they’re pretty much
always there with somebody.” She further stated that such a disorder rarely changes, and
“[l]ike only in 5% of the cases.” Ms. Yarling testified that Mother has been making
“[m]inimal progress” in therapy.
Ms. Yarling testified that Mother provided her with a copy of the evaluation
done on Mother in 2006, but refused to provide Ms. Yarling with one the done in 2002. Ms.
Yarling stated:
I asked her for the evaluations on September 30th of ’09 and she told me that
2002 isn’t relevant to the case because it pertains to the custody of her older
daughter. She told me she would bring the 2006, which she did at the next
session. I asked her again about the 2002 eval and she said it was none of their
business.
Ms. Yarling testified that it would have been helpful in her diagnosis and treatment of
Mother to have the 2002 evaluation.
Ms. Yarling testified that the goal of Mother’s therapy “has been to address the
stipulations that were listed in essence for her to get her children back, so we were addressing
her history of, her role in the placement, the disruptions, communication within the family,
parenting.” When asked if Mother had made progress toward the goal, Ms. Yarling stated:
“According to what [Mother] tells me I feel that there has been some progress towards those
goals.” Ms. Yarling stated, however, that she does not see Mother with the Children, and
must rely upon what Mother reports about how she is handling situations. Ms. Yarling has
some concerns about whether Mother is being completely truthful in her reports,
based on [Mother’s] diagnosis because it would be consistent with her
diagnosis to maybe have some insight but not be able to actually put it into
-11-
practice and then I also had some concerns because outside of therapy I’ve
heard from talking to other people that are involved in the case situations that
seem to be in contrast to what she’s telling me.
Ms. Yarling testified about what Mother related regarding why the Children
were in custody stating:
Okay, she told me that on October 29th of ’03 that her boyfriend was living
with her and that her best friend’s fourteen year old daughter, I hope I’ve got
that right, alleged sexual abuse against her boyfriend. She said he was in jail
but DCS removed the kids anyway. She said that he plea bargained, but she
ended the relationship with him.… And then she told me the first trial home
placement was disrupted in March of ’04 after one week. She said that Sierra
said she saw mom’s boyfriend, but [Mother] claimed that he wasn’t staying at
the house. Let’s see. She also mentioned something about Barb Pruitt, a
caseworker in Morristown tried to sabotage the case in ’06. I’m not exactly
sure what the details are on that. At the second trial home placement in June
of ’07 she said it was disrupted on the 31st day. She said that Sierra threw a
tantrum in the store. She clamped her feet on the grocery cart. She said she
called her friend Jim to come and help her. He got Sierra out of the cart.
[Mother] held her and carried her out to the car. Once in the car Sierra was
kicking so [Mother] called the police to get her settled down. The police
noticed Sierra’s mouth was bleeding and asked mom if she hit Sierra in the
mouth. And then the third trial home placement was, let’s see, in March of ’09
she said on the second day Sierra became oppositional. She mentioned that a
Holston in-home worker was supposed to be on call 24/7 and that [Mother]
had to call her several times for help. She said later this was used against her.
On April 30th she said that there was a safety plan made with the caseworker
and spanking was only to be used as a last resort. Apparently there was an
argument between Hunter and Sierra. [Mother] carried Sierra because she was
kicking the door and then [Mother] spanked her and Sierra bruised and she
blamed the bruising on the medication that Sierra was on, Klonopin.
Ms. Yarling was asked if Mother’s position with regard to the reasons for
custody and the failed home placements has changed since she’s been in therapy with Ms.
Yarling, and Ms. Yarling testified:
No. There, it’s always, she has always pretty much blamed it, you know, on
other people. I do have to say out of fairness that at our last session she did
bring up the incident at Food Lion.… And now told me that she thought that
-12-
it was silly that she made an issue out of that and that she would do things
differently, you know, if she had to do it over again.… Which is really the
first time that I’ve ever heard her come close to saying, you know, I might
have had a part in this.
When asked if Mother had accepted any responsibility for the Children being
in the custody of the State in foster care, Ms. Yarling stated: “No, as far as I remember she’s
pretty much blamed that on DCS.” When asked if Mother had demonstrated any insight into
problem areas that contribute to her inability to parent, Ms. Yarling testified:
Minimal, I would say, as far as insight into sort of her personality and how she
approaches things. I have seen a little bit more humility. She seems to have
maybe softened a little bit, not as abrasive as she was when she first started
seeing me. Not as quick to jump, I should say she probably still has the
tendency to jump, but is doing a little better at managing her, her reactions.
Ms. Yarling was asked for her opinion regarding Mother’s ability to parent the
Children in stressful situations, and she testified:
I do have concerns about that. Just based on some things that I’ve heard other
people tell me that [Mother] hasn’t particularly shared that, those incidents
with me. I have concerns that the changes that she’s made are so new and
fresh that, and she’s only implementing them on, say a weekly or biweekly
basis when she’s visiting with the kids. I have concerns about whether or not
she would be able to maintain that, if the kids come home and they were with
her all the time.
When asked if she had observed anything recently that gave her concern about
Mother’s ability to parent, Ms. Yarling stated:
I observed in the sense of hearing, she was on a phone call with me when her
granddaughter was, she and her, her daughter and her granddaughter were
staying with her for a couple of weeks and I was talking with her on the phone
and I could hear a little one in the background and at one point [Mother] just
kind of sharply rebuked her, you know, in terms of get away from my
computer, kind of real harsh like that. And then shortly after that she came to
see me and she mentioned that the, she wasn’t getting much sleep because the
granddaughter wasn’t sleeping, being out of her own environment and she told
me that she mentioned to her daughter we just need to get in the car and, and
go away from housing so nobody can hear us so that we can spank her and
-13-
make her go to sleep. And I thought that that was kind of over the edge as far
as what you would do to get a two year old to go to sleep.
This phone call occurred just a few months before the trial.
Lamont Douglas is a child and youth therapist employed by Frontier Health
whom the parties stipulated as an expert in counseling and child therapy. Mr. Douglas has
worked with both Children. At the time of trial, Mr. Douglas was working with Hunter. Mr.
Douglas had not worked with Sierra since she went into a residential program, approximately
one year earlier.
Mr. Douglas was asked why the Children were in therapy with him. He
testified it was because they were in foster care and had “[a] lot of issues related to anger,
anger outbursts, especially toward each other. Also some inappropriate sexual contact
between the two children that had been observed by some of the foster parents ….” Mr.
Douglas testified that Hunter and Sierra have one of the worst sibling relationships that he
has ever worked with.
With regard to therapy prior to Sierra being moved, Mr. Douglas stated:
In sessions I was able to engage them in some play therapy, game therapy. We
were actually getting to the point of where we had a fairly civilized concourse
without either one of them trying to go across the table towards each other,
which was actually significant because for awhile there they would almost,
invariably if you put them together more than five or ten minutes and they
were almost at each other’s throats so that, we were starting to make some
progress towards that. Of course that also required a lot of prompting and a
lot of intervening with the therapist during that, but that was a significant
improvement. And that was starting to happen right before she went into the
residential.… We were beginning to get some progress. I wouldn’t say that
they had really made significant, but we were starting to get a little bit of
progress.
Mr. Douglas testified that Hunter has expressed a fear of Mother. Sierra also
had expressed to Mr. Douglas a fear of Mother. Mr. Douglas testified that Hunter also is
afraid of Sierra. Mr. Douglas testified:
There was a lot of physical altercations between the two of them [Sierra and
Hunter]. A lot of physical violence between the two of them, not just the
typical fighting, which we typically have. I mean, when they were in foster
-14-
care, the same foster care house, I mean it was almost knock out drag outs, is
the way that it was reported to me. So there is a physical component to it.
Like I said, there was some indications previously of some either sexual
reactivity or sexual acting out, especially with Sierra towards Hunter, so that
could possibly also add into, to that.
When asked what Hunter says about Mother, Mr. Douglas testified:
Typically very vague. I’m looking for some recent examples. Like the last
time I saw him was on 6/30 and he indicated that he had gone fishing with his
mother. He says that he didn’t enjoy himself at that time. When asked why he
didn’t enjoy himself he would not say, but 6/22 he was asked just how he felt
about how things were going with mom and he refused to answer and
continued to change the subject any time that was asked. I was just asking him
for feeling, not asking him for specifics or anything of that nature. 6/16 I saw
him and he stated he had talked with mother recently and was wanting to visit
her, but not live with her. He stated that he could no longer be around his
sister at all and when asked why he felt he did not want to live with his mother
he would not answer and would change the subject every time, and that’s
pretty typical. He’ll give a tiny little blurb here and there, but most of the time
after that he shuts down pretty quickly and he will not continue on and like I
said, I’m not asking for specifics, just trying to get feelings, just trying to do
that and that’s something that he’s typically made sure that he does not share
or, or backs away from as soon as he does say something.… I can go through
all of these, but that’s very, very common. I was looking back a little bit
further because there’s a different focus on those. On 3/2, this is a note, I think
that stated that he had gotten some good, or got some rewards for some
behavior choices that he had done in school. He felt as though his foster
mother was very proud of him and knowing that was good for him. Was asked
about biological mother. He didn’t say anything, was accepted. He was glad
she was all right, but did not want to live with her. On 2/24 he made the
statement, he stated that he does not, that he wants to see his biological mother
sometimes, but not trust or feel safe with her. Would not say why he did not
feel safe with his biological mother.
Hunter has been diagnosed with ADHD and is oppositional defiant. Mr.
Douglas testified that parenting him will take a lot of work and stated:
a lot of outside support to be able to really help with that, especially with the
behavior that we’ve seen and especially with some of the safety issues that
-15-
we’ve seen with Hunter, with the potential of violence that he’s had previously
and then also with the fire setting recent, most recently.
When asked if there was a possible correlation between Hunter acting out and his visits with
Mother, Mr. Douglas testified: “It did seem to have a, a correlation between more of his
defiant behavior and more of the fire setting after the visits then, or within a day or two of
the visits.”
When asked his opinion about reuniting Hunter and Mother, Mr. Douglas
testified:
No, if he were to start out with the therapy with mom and that were really
being effective and then really building up the trust and getting the fear out of
what’s, whatever his fear is. Like I said, I don’t know, he has never really
expressed it. Never really has told me what it is but has mentioned it several
times, so I’m not sure what, like I said, I don’t know if that’s something that
is based on more fact or based on just his perception, but either way until we
get to that and can get past that, him being able to trust again is going to be
very difficult, especially with his mom.… He’s still afraid, yeah, and that’s
key. He’s still afraid. And that potentially has the danger of coming out in
anger or coming out in other different things and especially with like the safety
issues we’ve seen.… I would really fear that he would possibly do something
based on, like I said, that fear. Whether or not it be real or imagined, it doesn’t
matter.
Mr. Douglas testified that Hunter has been in his current foster home for “at
least a year and a half, two years.” When asked how Hunter is doing there, Mr. Douglas
testified:
He does very well with her. He has, he respects her. At different times he has
said to me, said to the foster mother in front of me that he wanted her to adopt
him and wanted, and calls her mom in front of me and often times I have
clarified with him who is talking about.… I think he feels, feels secure there.
I think as much as he can at this point. The reason I say that, I think there’s,
any time there’s this ambiguity of what will happen, where he’s going to be,
what may happen, who is he going to be with, then that’s going to affect any
child when you have those questions, when they want to know where am I
going to be next school year? Where am I going to be next week? Where am
I going to be, all of these different questions. But taking that into account I
would say he is doing very well.
-16-
Mr. Douglas testified that Hunter has asked the foster mother in Mr. Douglas’s presence
when she is going to adopt him.
When asked if it would be better for Hunter to have a permanent home sooner
rather than later, Mr. Douglas testified:
Absolutely. Absolutely, because I think that would help him stabilize and
really get over a lot of these other issues that I’m trying to work with him on.
A lot of these issues keep coming up and one of the reasons why I still see him
for the most part weekly is because of that uncertainty. And I put that as one
of the driving factors and there’s not much that I can do therapeutically except
try and give him some more coping skills and reassurance until we can actually
get something that’s permanently set by DCS and the Court.
Amy Evans is a child and family specialist, or case manager, with Holston
Home for Children. Ms. Evans began supervising visitations in this case in October of 2010.
She supervised one visit with Sierra on Thanksgiving Day, but her primary focus is Hunter
because he is placed with her agency. Ms. Evans testified:
Generally the visits go well. I mean there are a few instances where the visit
could have gone better, but in general the visits have been going well.
[Mother] for the most part is appropriate with Hunter. They’re affectionate
with one another. We’ve done some work on talking about inappropriate
things in front of Hunter and that has gotten better. I, I know last time I
testified in Court I had mentioned that [Mother] has lost her temper in several
visits. That’s improved mostly, but there have still been a couple of instances
where she has kind of snapped at Hunter and one instance in a visit where we
were at Fun Expedition and she snapped at him and he got his feelings hurt
and he went and hid from us, which I think is, I was, I was concerned with it.
Ms. Evans further testified:
[Mother], especially when I sort of first took over and throughout the spring
of last year she would talk about maybe sexually inappropriate things in front
of Hunter that I, I thought, and not necessarily like her own exploits, but did
mention a few things in front of him that I probably would have kept from an
eight year child, and, and just, it, when Hunter’s behaviors are a little bit more
challenging I think she has kind of trouble maintaining in visits.… Holding
onto her own temper. Well, probably not temper, but she gets more frustrated,
which is, I mean, which is understandable in a lot of situations, but it, [Mother]
-17-
does well with having like activities and food and she has often used rewards,
but, and it seems like she does that a lot better when Hunter is very calm, but
when he’s kind of acting out it’s almost like she forgets to, to use those tools
that she has developed.… She gets flustered and will yell at him or say, you
know, things repeatedly instead of, you know, sit down, sit down, sit down, sit
down instead of, you know, if you sit down then we’ll be able to do this, but
she is, she is good at, you know, the beginning of the visit she’ll say, well, I’ve
got this special treat, but she doesn’t always say I have this special treat, so it’s
kind of inconsistent, if that makes sense.
Ms. Evans was asked what kinds of things trigger Mother’s frustrations, and
she stated:
we have kind of a power struggle over eating sometimes, which with an eight
or nine year old you would kind of expect. He would rather play a video game
than eat his dinner. When he doesn’t sit still and he, you know, wanders in the
other room, that sort of thing, she gets frustrated.
Ms. Evans testified: “I have seen her snap at him several times and I’ve seen her cuss in front
of him, but not necessarily to him, which I think is good.”
Ms. Evans testified:
[Mother] did say in a visit at one point that she had to spank her
[granddaughter] and she didn’t necessarily say it in that, well, she said bust her
the slang word for bottom.… Bust her ass is what she said, in the visit while
we were sitting at a table with Hunter present.
With regard specifically to inappropriate comments made in front of Hunter, Ms. Evans
testified:
There was a visit where we were eating chicken fingers for, for a snack and
she proceeded to tell me a long story about how she had found a chicken finger
in one of her packages of frozen chicken fingers that looked like a penis and
she took pictures of it and put it on the Internet and, or on her Twitter account
I think she said. Not necessarily the Internet and, and all of this in front of
Hunter and Hunter became interested in what she was, in the subject matter.
There was an incident where she had talked about going to meet a, or going to
see a county music star and she met him and she asked him if it was okay if
she molested him a little bit and then she grabbed his butt and she said this in
-18-
front of Hunter, …. She has shown me pictures of a man’s hind end that she
took pictures of in front of Hunter.
Lisa Shifflett, Director of Family Services at Holston Home for Children,
testified at trial. Beginning in August of 2010, Ms. Shifflett began doing family therapy with
Mother and Hunter. Ms. Shifflett did about four months of therapy with Mother and Hunter.
Ms. Shifflett explained that the therapy was scheduled for every other week, and that they
met about eight times in total.
Ms. Shifflett testified about the therapy stating:
Initially we had set a goal of discussing [Mother’s] role with Hunter and what
brought the children into care as well as why they have remained in care for
so long. During the sessions we did activities and facilitated discussions and
just different things to try to help them process that together and it was my
understanding from DCS and from other recommendations that that was the
focus of what our treatment needed to be at that point, so through all of that we
ended up terminating, I want to say it was December or January. No, the end
of December, beginning of January … 2010.… And the primary reason for
that was that we weren’t able to meet the goal that we had originally set.
There was not an accountability of [Mother] accepting her responsibility and
the role of why the kids came in or why they remained in and without that it
was, I was unable to help Hunter and her process together those events because
of that, so ….
When asked if the goal of the therapy was explained to Mother and what her
response was, Ms. Shifflett stated:
The response in general in the beginning and then throughout was usually a
justification or, I mean a reason why the kids were brought in, but not her role
in it, if that makes sense. There wasn’t, she wasn’t at a point, I don’t think,
individually to be able to take responsibility or accept her role, so ….
Ms. Shifflett usually met with Mother and Hunter together, but there were
times when Ms. Shifflett met with Mother alone. Ms. Shifflett testified that Mother primarily
blamed DCS and the court system for the children coming into custody.
Ms. Shifflett described a session when Mother became upset stating:
We had done an activity where they were identifying things for different
-19-
feelings and [Mother] had identified, it was either angry or sad when DCS had
taken the kids away from her and that sparked a conversation because at that
point Hunter started asking questions and it never dawned on me until then
because he didn’t realize he had been taken away from her. He always had his
first set of foster parents in his mind as far as who he, who he had been taken
away from. That’s where his earliest memories are at, so, and I think as any
mother, I mean, [Mother] was upset by that because Hunter had that confusion
as to who his actual mother was, so …. Well, he has always called her mom
but he didn’t realize as far as biological mom and that’s who he was born to
and taken away from. He didn’t realize that and I, well, it’s as simple as that.
Ms. Shifflett testified: “I guess from a clinical standpoint my biggest concern
is that if there’s no accountability or acceptance of the responsibility of her role of what
brought the children in or have kept them in this long, then there’s just a significantly higher
risk of those same things reoccurring again.” Ms. Shifflett did not think that it was in
Hunter’s best interest to be returned to Mother’s custody in the near future.
Alisa Hatcher is a lead therapist at Youth Villages, Inner Harbor. Ms. Hatcher
has been Sierra’s therapist since Sierra was moved to Youth Villages in the summer of 2010,
with the exception of a brief period during the fall when Sierra saw another therapist. Ms.
Hatcher testified:
Sierra is here because she has trouble with behavioral concerns regarding
aggression, primarily with aggression. She has had several different issues
along the way that have also been part of that issue. Aggression towards
others. She has had some issues with self harming in the past. That hasn’t
been something that we have seen her with recently. Aggression to others has
primarily been one of the issues she has dealt with throughout her entire
treatment since last summer. Dealing with how she handles authority figures
is a large part of her treatment. Acceptance of responsibility for her part in
conflicts, those kind of issues, primarily being at 5th level of care, just the
intensity of our residential treatment center is due to the level of aggression
that she has displayed.
Sierra has been diagnosed with bipolar disorder, attention deficit hyperactivity
disorder, and oppositional defiant disorder, among other things. Ms. Hatcher testified that
Sierra is functioning at a fairly low level and stated:
You would expect to see someone at her age much higher and that is in large
part due to the amount of aggression and conflict in her interaction with adults
-20-
as well as with peers of her own age and her ability in, in the school
environment for a child of her age.
Ms. Hatcher testified:
Overall [Sierra] is compliant with her medications. Occasionally she will have
a day and it usually only lasts for a short period but where, when she is asked
to do something, morning routines are difficult for her and she will refuse to
get out of bed, which is also at a time when she is expected to take her
medication. Usually that’s the only time that she will refuse them, but it is not
about not wanting to take medications. This is about defiance, presentation of
herself, but usually turns it around and is able to get, get her meds and move
on with her day at this point.… There, there are times where she ends up
becoming aggressive. She misses school and play activities because she will
continue to refuse to get out of bed.
With regard to the family therapy, Ms. Hatcher testified:
Last summer [Mother] was not here very often at all. I don’t recall that we
were able to have her here until the fall when Sierra had moved to the Douglas
Center and her therapist at that time had worked with them to be able to have
[Mother] come to the campus. I recall that we talked on the phone at that,
when she first came here. And her, Sierra’s responses with [Mother] were
very out of routine, what I would expect from a child is very, very guarded,
kind of protective about her behavior. Didn’t want to say too much, but didn’t
want to be called out on too much either. And then in the fall [Mother] was
here. Jason Stevens was the therapist at the time and he was following her
case up until December when Sierra, I believe December is when they started
having therapeutic leaves away from the campus, where they were allowed to
have some time there. And around that same time, in December time is when
her behavior started to escalate significantly. Very conflicted about issues
across the board and into the beginning of the year. Once I started working
with her again in January [Mother] has been attending therapy consistently
since that time every other week. She has been here and Sierra’s improvement
with family therapy since then has been that she is in the sessions and she is
able to attend more of the off campus therapeutic leave that they have. She
does still struggle to do that and that’s one of the issues that we have been
working on there to try to help her responding to limits and being able to
accept those types of things because she still tests limits quite frequently.
-21-
Ms. Hatcher testified that they are in the process of trying to help Sierra
transition into a foster home and stated:
At this point our recommendation is that [Sierra] goes to a home with no other
children because of the sexual behavior problems that Sierra has had in the
past, which have been up into this year, in 2011, there have been issues and
concerns there with her behaviors that continue to make that something that
would not be recommended and it would require extensive safety planning.
In addition to the sexual behavior problems that she has displayed she also
struggles greatly with peer conflicts and because some of Sierra’s behaviors
and the thinking patterns that are behind her behaviors are so extensive and
have required so much work we really want to have her make a slow transition
process where she is working only with adults on accepting responsibility and
being able to accept feedback or limits from adults without having to have the
influence of other children in the home with her at that point upon leaving
here, because that has been something she has struggled with.
Ms. Hatcher does not believe that reuniting Sierra with Mother is in Sierra’s
best interest. Ms. Hatcher expressed concerns about Sierra’s safety if Sierra were returned
to Mother. Ms. Hatcher agreed that Sierra needs a very, very strong parent figure, and Ms.
Hatcher stated that Mother is not that type of parent “at this time.” When asked if she could
foresee Mother becoming this type of parent, Ms. Hatcher stated: “No, not without some
fairly extensive training for her.”
Carolyn L. (“Foster Mother”) is Hunter’s foster mother and has been for
approximately a year and a half. She and her adult son live with Hunter. Foster Mother
testified:
Hunter is doing great now. He has a couple of issue we’re working on, but
when he came to me he was about non-functional.… [H]e never slept, he, he
couldn’t concentrate. He threw fits and cleaned my house out.… You know,
take a dozen eggs and throw them in the floor and throw all my vases on the
floor, clothes and scream and curse me and call me all, but I’ve worked hard,
really hard.
When asked how Hunter behaves now, Foster Mother stated: “Oh, he’s, he’s a sweetheart
now. I mean, he has a couple of, a couple of things. A child is a child, you know.”
Foster Mother testified that she had a lot of problems with Hunter stealing and
lying and at the beginning of the previous school year he had been suspended from school
-22-
twice for a total of fifteen days. One of those suspensions was for starting fights on the
school bus and cursing at the bus driver.
Foster Mother testified that she is working hard with Hunter and stated: “I
think I’m making progress.” She further stated: “he has come a long ways, a long ways.”
Foster Mother testified that she loves Hunter, and stated there is “[n]o doubt in my mind” that
he loves her. Foster Mother wants to adopt Hunter.
After the trial, the Trial Court entered its very detailed order on August 17,
2011 finding and holding, inter alia:
6. The mother, [Mother], failed to pay a reasonable amount of child support
for the children between March 20, 2010 and July 20, 2010, the four months
immediately preceding the filing of the Petition;
7. The mother, [Mother], paid a total of $20.00 ($10.00 for each child) in child
support between March 20, 2010 and July 20, 2010, the four months
immediately preceding the filing of the Petition;
8. The mother, [Mother], was aware of her court-ordered obligation to pay
child support;
9. The mother, [Mother], did not provide any other material support for the
children to either the foster parents or DCS between March 20, 2010 and July
20, 2010;
10. Although the mother, [Mother], testified that she was in an automobile
accident on July 24, 2010, there is no credible evidence that she was injured
to the extent that she could not work. Her testimony to the contrary is not
credible.
11. Although the mother, [Mother], may have been burned with grease on July
4, 2010, there is no credible evidence that she was injured to the extent that she
could not work. Her testimony to the contrary is not credible;
12. There was no credible evidence that the mother was ill, injured or
incarcerated between March 20, 2010 and July 20, 2010 which would have
prevented her from working;
13. The mother, [Mother], donates plasma and receives financial assistance
from her family in order to support herself;
14. The mother smokes a pack of cigarettes per day and, according to her
testimony, her cigarettes cost $ 3.00 per pack;
15. The Court computes simple math for 30 days a month at $3.00 per pack
and finds that the mother’s cigarette smoking costs her approximately $90.00
per month;
16. While the mother had money for cigarettes, she only allocated $20.00 in
-23-
child support for the four months between March 20, 2010 and July 20, 2010;
17. The mother did not recall looking for employment during the four months
preceding the filing of the Petition;
18. The children have been in the custody of DCS since October 31, 2003,
(over seven and one-half years) with the exception of three trial home
placements, none of which was successful and the longest of which was
approximately five weeks;
19. The Hamblen County Juvenile Court found, by clear and convincing
evidence, as evidenced by the certified copy of its Order which was filed as an
exhibit in this cause, that the child, [Sierra] was in bed with the mother and her
boyfriend, [Scotty H.] when the two adults had sex;
20. The Hamblen County Juvenile Court found, by clear and convincing
evidence, as evidenced by the certified copy of its Order which was filed as an
exhibit in this cause, that the child, [Sierra] was sexually abused by a half-
sister when the half-sister had stuck a Barbie doll arm up Sierra’s anus
resulting in a an [sic] anal tear;
21. The Hamblen County Juvenile Court found, by clear and convincing
evidence, as evidenced by the certified copy of its Order which was filed as an
exhibit in this cause, that [Scotty H.] was charged with the sexual battery of a
fourteen year old babysitter and, that the mother, [Mother], continued to live
with him;
22. The Hamblen County Juvenile Court found, by clear and convincing
evidence, as evidenced by the certified copy of its Order which was filed as an
exhibit in this cause, that there were previous referrals on the mother’s home
for lack of supervision of these children and that DCS had provided services;
23. The mother, [Mother], has been in therapy with Polly Yarling, a licensed
clinical social worker, since 2009 and has had at least 41 sessions with the
therapist;
24. Polly Yarling, as stipulated by all parties, is an expert in the field of family
therapy and child development;
25. Polly Yarling’s licensure authorizes her to perform psychological
evaluations and her review of a diagnosis from a previous evaluation finding
that the mother, [Mother], has a personality disorder, not otherwise specified,
with narcissistic traits is consistent with her observations of the mother in
therapy. In her opinion a personality disorder is a pervasive condition and
rarely changes;
26. Since the removal of the children in 2003, there have been instances of
physical violence towards the children, particularly Sierra, during the failed
trial home placements;
27. The first trial home placement (2004) ended after approximately one week
-24-
when the mother was evicted and Sierra made a statement about seeing [Scotty
H.], the man the mother had been involved with earlier;
28. During the second trial home placement, the child [Sierra], had a bloody
mouth as a result of an incident involving the mother and the child at a grocery
store. The incident was the precipitating cause of the termination of the
second trial home placement which had begun on June 6, 2007, and ended on
July 10, 2007;
29. The third and final trial home placement began on March 31, 2009, and
ended on May 1, 2009. The third trial home placement ended as the result of
the mother’s use of corporal punishment on the child [Sierra], directly contrary
to the Order of this Court for her to refrain from inflicting corporal punishment
on the child. The mother blamed the child’s bruising on the child’s
medication;
30. The mother’s corporal punishment of the child was evidenced by visible
hand prints on the child’s legs which were caused by the mother;
31. [Mother] has not accepted any responsibility for the removal of the
children from her care and custody or the termination of the trial home
placements to her therapist over 41 sessions with the exception of one session
on June 27, 2011, when she told her therapist that she would handle the
incident differently;
32. [Mother] does not show any insight to the children’s current situation and
she has consistently blamed DCS for the children’s conditions;
33. The mother’s therapist has concerns about the mother’s ability to parent
the children. She would not recommend placing the children with their mother
within the next six months, possibly within the next year;
34. In the therapist’s opinion, [Mother] has made minimal progress in
identifying her problems which contribute to the current situation;
35. The mother’s therapist overheard [Mother] sharply rebuke a little child in
the background to “get away from my computer” when she was speaking to
[Mother] on the telephone in April, 2011. The little child was believed to be
[Mother’s] two year old granddaughter;
36. The mother told her therapist that she was not getting much sleep and that
she and the child’s mother needed to put the toddler in the car and get away
from housing so that no one would hear them spanking the child;
37. The therapist testified that the [Mother’s] overall progress in nearly two
years of therapy was minimal;
38. The child, [Hunter], has been diagnosed with attention deficit disorder and
oppositional defiant disorder by his therapist, Lamont Douglas, who is a child
and youth therapist recognized by the Court as an expert in this field.
39. While Lamont Douglas was treating both children, there were anger
-25-
outbursts between the children and inappropriate sexual contact between the
two children. At one point during the therapy the child, [Hunter], was setting
fires in the foster home;
40. [Hunter] does not talk about his mother to his therapist, and when his
therapist asks the child about his mother, he just typically shuts down;
41. [Hunter] has consistently told his therapist since 2008 that he does not feel
safe with his mother. The therapist could not testify whether the child’s fear
was based on fact or fiction, but did testify that the child’s fear was still a fear.
The therapist believes that the child is afraid of his mother;
42. [Hunter] has told his therapist that he would like to see his mother but that
he does not want to live with her;
43. Mr. Douglas opined that it would require exceptional parenting skills to
parent a child with Hunter’s mental health diagnosis and behavior issues;
44. Mr. Douglas testified that the child has repeatedly stated that he wants his
foster mother to adopt him. He has asked the foster mother in Mr. Douglas’
presence when she was going to adopt him. The child calls his foster mother
“Mom;”
45. In Mr. Douglas’ opinion, permanency is in Hunter’s best interests and
when he obtains a permanent home, his condition will most likely stabilize;
46. Mr. Douglas opined that there appeared to be a correlation between
Hunter’s negative behaviors and visits with his mother, [Mother];
47. [Sierra] disclosed similar concerns about having a fear of her mother to
Mr. Douglas when he was treating both children. Sierra made statements to
him concerning the physical altercation between her and her mother at the time
of the third (and final) trial home placement;
48. In Mr. Douglas’ opinion, the two children have a bad sibling relationship,
one of the worst sibling relationships he has ever worked with. Hunter is
afraid of Sierra. There had been a lot of physical violence between the two
children, “almost knock-down drag-outs.” There were reports of Sierra
sexually acting out toward Hunter in a foster home, resulting in the separation
of the children;
49. Mr. Douglas expressed concern if the mother said that she was going to
take a child away from possible observation by others for the purpose of
spanking the child;
50. The mother, [Mother] had discussed sexually inappropriate topics in front
of Hunter last spring, when Hunter was eight years old. She had said, while
eating chicken fingers, that she had found one that looked like a penis, that she
took a picture of it, and that she put it on her Twitter account. She had said
that she met a country music star, asked him if she could molest him a little,
and grabbed his butt. She showed the therapeutic supervisor a picture of a
-26-
man’s bottom. All of these actions occurred in the presence of Hunter;
51. [Mother] acknowledged that she had spanked her two year old
granddaughter. Her actual statement was “I busted her ass;”
52. The mother has supervised visitation with the child, Hunter. The
therapeutic supervisor provides feedback to the mother and the mother has
been responsive on several occasions. During some of the visits, the
therapeutic supervisor has to prod to get the child and his mother to interact;
53. [Mother] is usually appropriate with Hunter during the supervised visits
and has gotten better about not talking about inappropriate topics;
54. When Hunter’s behaviors are a little out of control during a supervised
visitation, the mother gets frustrated. She “forgets to use the tools she has
learned” to redirect Hunter’s behavior. She loses her temper. She gets into a
power struggle with the child over eating. She has cursed in front of the child,
and has snapped at him.
55. Family therapy between Hunter and his mother occurred bi-weekly for
four months beginning in August, 2010. The family therapy was terminated
because the mother did not accept responsibility for why the children were in
foster care and had no accountability;
56. From a clinical standpoint, according to the family therapist, if there is no
accountability by the mother about why the children are not in her custody,
there is an increased risk of abuse or neglect of the children occurring again;
57. In the opinion of the family therapist, reunification between the child and
mother was not in his best interests;
58. The child, [Sierra] has a diagnosis of bipolar disorder, not otherwise
specified; oppositional defiant disorder, and attention deficit hyperactivity
disorder. She displays signs of reactive attachment disorder;
59. When Sierra arrived at her residential treatment facility, she was a “very
troubled, damaged child;”
60. Although Sierra’s behaviors have improved, she still has a long way to go
in controlling her behavior and minimizing conflict in challenging adult
authority, in her therapist’s opinion;
61. When Sierra started having off-campus visitation with her mother in
December, 2010, her negative behavior increased;
62. Parenting [Sierra] will be exceptionally challenging;
63. It would not be appropriate to place Sierra in a home with other children,
because of her sexual behaviors and because she struggles with significant
peer conflict;
64. It is not in Sierra’s best interests to be reunited in the home with her
mother. Although their rapport is positive, structuring their reunification in a
safe setting is her therapist’s concern. According to Sierra’s therapist, six
-27-
months of intense therapy with the mother working on setting limits and
providing an environment with rules that are socially appropriate may not be
enough time to accomplish this goal;
65. Sierra’s therapist, Ms. Hatcher, opined that the [sic] Sierra will need a
very, very strong parental figure and her mother is not that person;
66. In Sierra’s therapist’s opinion, the stability of an adoptive home would be
ideal for Sierra. She would not recommend the return of Sierra to her mother;
67. Sierra has expressed to her therapist mixed feeling[s] about adoption and
returning to live with her mother;
68. In her therapist’s opinion, if Sierra’s mother was the cause of the abuse in
her life and her mother was removed from her life, Sierra would progress;
69. Despite seven years of individual counseling for the mother and both
children, family counseling, psychological assessments, parenting assessments,
parenting classes and in-home services, it is likely that in all reasonable
probability both of the children would be subjected to further neglect and/or
abuse by the mother should they be returned to her care and custody;
70. Due to the length of time and the extensive services already provided,
there is little likelihood that these conditions will be remedied so that the
children could be returned to [Mother] in the near future;
71. The child, [Hunter], is doing well in his foster home, the foster mother
testified that “he is a sweetheart now;”
72. When [Hunter] was placed in the foster home he was about non-
functional. He would not sleep, he had fits, he was disruptive, he cursed, he
stole and lied;
73. The foster mother testified that she would like to adopt Hunter should he
become available for adoption;
74. Hunter has stated numerous times that he wants to be adopted;
75. [Mother] has not made an adjustment of her circumstances, conduct or
conditions despite years of assistance by the Department of Children’s
Services and other providers;
76. It is unlikely that [Mother] will be able to make an adjustment in her
circumstances in the near future;
77. The only indication that [Mother] is even starting to recognize her role in
these circumstances was her testimony that “I could have handled the
situations differently.” This is an inadequate movement towards an adjustment
in conduct and conditions;
78. There is “some” positive relationship between the mother, [Mother], and
the child, [Sierra], according to Sierra’s therapist. Sierra, according to her
therapist, views her relationship with her mother as someone she spends time
with, but as not who she lives with. They have not developed the relationship
-28-
such that they could live together. The relationship that Sierra and her mother
have with each other is not interpreted by the Court to be a meaningful parent-
child relationship;
79. There is not a meaningful relationship between the mother [Mother] and
the child [Hunter]. Until very recently he did not even realize that he had been
removed from her home. When he returns to his foster home from supervised
visits with his mother, he clings to his foster mother;
80. [Hunter] is well integrated into his foster home. His behaviors in the foster
home and school have improved dramatically over the last year although there
have been negative behaviors, too. His foster mother expressed her love for
the child. She is very bonded with the child. His foster mother has met the
child’s educational needs. She is committed to the child. A change in care[-
]givers and physical environment would likely have a very negative effect on
Hunter’s emotional and psychological condition;
81. [Sierra] requires a change in care[-]givers from her residential treatment
facility to a safe and structured foster home, due to her no longer needing this
intensity of services. She testified that she would like to be moved to a foster
home closer to her mother. She testified that she misses her “old” foster
mother and wishes she were going there;
82. The testimony of [Mother] was not credible. Whenever pressed on an
issue that may be negative to her, [Mother] “could not remember.” [Mother]
did not remember how Sierra ended up with a bloody lip during the second
failed trial home placement. [Mother] could not remember if her therapy
included any of her past actions that may have contributed to Sierra’s
behaviors. [Mother] could not remember if she had a diagnosis from any of her
mental health evaluations. [Mother] could not remember anything that was
specifically her fault for any of the failed home placements;
83. [Mother] expressed emotional feelings for Sierra’s therapist to him,
resulting in the necessity for him to withdraw as Sierra’s therapist. The Court
finds that the requirement to change therapists was detrimental to Sierra’s
well[-]being;
84. [Mother] has not completed anger management training or counseling as
recommended in the parenting assessment;
85. [Mother] stated that she does not have an anger management problem;
86. [Mother] stated that the only reason she is in counseling is that it is a
requirement of the permanency plans;
87. Despite having graduated from college in December, 2009, [Mother] is
not currently employed and, with the exception of registering with a career
center, she has made little effort to obtain employment;
88. [Mother] was employed in the public sector prior to her graduation from
-29-
college;
89. A parenting assessment completed by Dr. John [Angelopoulos] found that
[Mother] lacked interpersonal skills, presents as accusatory, combative, and
paranoid, and has a history of poor decision-making skills. His evaluation
assessed her risk of future abuse and neglect as “high;”
90. [Mother] was given prepaid gas cards from the Department of Children’s
Service[s] to travel to Atlanta to visit with Sierra at the residential placement
facility when visits were approved by the Court in the fall of 2010. The
residential placement facility always paid for the costs of her motel room to
stay overnight.
91. On some occasions, the cost of gasoline exceeded the prepaid gas cards
which [Mother] had received from the Department of Children’s Services. She
presented numerous gas receipts with hand-written notations for the purported
purpose of evidencing these purchases. She presented receipts for new tires
for her automobile, anti-freeze, a radiator hose, oil and oil change, and
windshield blades, which the Court finds are expenses of normal vehicle
maintenance. Her visits with Sierra were on alternating weekends and she has
presented gas receipts for every day of the week, including receipts for
purchases made with the prepaid gas cards. She presented several gas receipts
for $10.00 each to go to the Department of Children’s Services to pick up her
prepaid gas cards. She has presented receipts for attending family therapy with
Hunter and to visit with him, even though the family therapy and visits with
Hunter were local.
92. The only definitive receipts which the Court can attribute to the mother’s
alternating weekend trips to Atlanta to visit Sierra (which were not paid by
prepaid gas cards and the residential facility for lodging) are for February 17,
2011 ($50.00), February 19, 2011 ($69.42), March 19, 2011 ($6.40 and
$23.00), April 9, 2011 ($27.00), and April 23, 2011 ($65.00).
93. [Mother] purchased poker cards ($1.00) on February 3, 2011, Chap Stick
($1.65) on February 18, 2011, nail glue and air brush nails ($2.00) on February
19, 2011, a greeting card ($1.00) on March 18, 2011, 3 pairs of socks on April
9, 2011, and puzzles ($7.00) on April 23, 2011, for her daughter, Sierra. She
presented no other receipts or evidence of direct gifts or support to Sierra.
94. [Mother] presented no receipts or evidence of gifts or support to Hunter.
***
1. From the exhibits entered into evidence, the testimony of the witnesses and
the record as a whole, the Court finds and so rules that the GAL and DCS have
proven by clear and convincing evidence that the mother, [Mother] has
-30-
abandoned her children, [Sierra] and [Hunter], by willfully failing to pay child
support for four consecutive months immediately preceding the filing of the
Petition. The Petition to Terminate Parental Rights was filed on July 20, 2010.
The proof showed that a total of $20.00 ($10.00 per child) in child support was
paid during the period of March 20, 2010, and July 20, 2010, the four
consecutive months immediately preceding the filing of the Petition. The
Court finds and so rules that $10.00 in child support during a four month
period is token support under the circumstances.
2. The proof further showed that the mother, [Mother], is a college graduate,
is unemployed, and has done little or nothing to obtain employment since her
graduation. [Mother] had worked in the public sector prior to her graduation
from college. [Mother] obtained money by selling plasma and received
financial support from her family. She is able to spend approximately $90.00
per month on cigarettes, and yet is unable to make even minimal payments for
the support of her children. Her testimony that she was unable to work due to
a grease burn on July 4, 2010, was not supported by medical evidence and is
not credible. [Mother] was aware that she had the obligation of supporting her
children, that she had been ordered by the Court to pay child support, and that
she was present in Court when child support was set. She had paid child
support in the past. She knew the consequences of her failure to pay child
support since she was provided copies of the Definition of Abandonment and
Criteria and Procedure for Termination of Parental Rights by the Department
of Children’s Services on several occasions, and since the Court explained the
definition to [sic] abandonment to her in the permanency plan hearings several
times prior to the filing of the Petition. The Court finds and so holds,
therefore, that there is clear and convincing evidence that the mother’s failure
to pay child support was willful.
3. The Court is, therefore, of the opinion and so holds that the GAL and the
DCS have proven, by clear and convincing evidence, the statutory grounds for
termination of parental rights as set out in T.C.A. § 36-1-113(g)(1) as defined
in T.C.A. § 36-1-102(1[)](A)(i), as to [Mother], by reason of abandonment for
willful failure to provide support for the children during the four consecutive
months immediately preceding the filing of the petition.
4. From the exhibits entered into evidence, the testimony of the witnesses and
the record as a whole, the Court finds and so rules that the GAL and DCS have
proven, by clear and convincing evidence, that that [sic] there are conditions
that exist that will prevent the safe return of the children to the mother; there
is little likelihood that the conditions will be remedied in the near future; and,
continuation of the parent and child relationship greatly diminishes the
children’s chances of early integration into a safe, stable and permanent home.
-31-
The children have been in DCS custody for over seven and one-half years.
They were removed from the mother’s home due to findings of inappropriate
conduct on the part of the mother, i.e., permitting the then 5 year old [Sierra]
to be present when the mother was having sex with her boyfriend. The
Hamblen County Juvenile Court also found that Sierra had been sexually
abused by her half-sister. The mother did little or nothing to protect the child
from her half-sister. Since that time other conditions have arisen or come to
light that prevent the return of the children to the mother’s care and custody.
The children were placed on a trial home placement which disrupted due to the
mother being evicted from her home. The children were placed on a second
trial home placement which was disrupted when the mother engaged in a
physical altercation with Sierra in a grocery store resulting in the child
receiving a bloody mouth. The mother’s testimony that she “did not
remember” how the child got the bloody mouth is not credible. The third trial
home placement disrupted when the mother engaged in corporal punishment
of Sierra leaving evidence of hand marks in direct disobedience of the Court’s
Orders for her to refrain from exercising corporal punishment to the children
due to the history of the case. The children’s behaviors deteriorated
significantly after the end of the last trial home placement. The children
engaged in fights and inappropriate sexual conduct to the extent that they had
to be placed in separate foster homes. The child [Sierra’s] behaviors have
resulted in her out of state residential treatment for approximately one year.
The child [Hunter’s] behaviors included lying, stealing, disruptive behavior,
cursing, failure to sleep and fire starting. The mother, [Mother], has never
acknowledged, either in therapy or in Court, her role in creating or continuing
the situations which have made it necessary for the children to be in foster
care, with the exception of a very recent acknowledgment that “she could have
handled things differently.” The mother’s therapist testified that the mother
has made minimal progress in therapy over the last two years. Neither the
mother’s therapist nor either of the children’s therapists could recommend the
return of either of the children to the mother. Both children have expressed
fear of their mother. The parenting assessment by Dr. John Angelopoulos
noted that [Mother] lacked interpersonal skills, that she presents as accusatory,
combative and paranoid, and that she has a history of poor decision making
skills. [Mother] denied any responsibility for the situation concerning her
children during the parenting assessment. Dr. Angelopoulos assessed her risk
of future abuse and neglect is high due to her level of denial, paranoia and the
history of the case. More recently there were two incidents involving
[Mother’s] two year old granddaughter which serve to confirm the therapists’
opinions. [Mother] was overheard telling her daughter that they should take the
-32-
toddler away from their apartment to spank her so that no one could hear the
spanking. In a separate incident [Mother] reported that she had spanked her
two year old granddaughter, except that her terminology was the [sic] she had
“busted her ass.” Given her recent willingness to use corporal punishment, the
fact that two of the trial home placements were terminated due to her using
corporal punishment on her children, the fact that she has made minimal
progress in her therapy in 41 sessions over a two year period, that she has been
assessed had [sic] having a high probability of abusing or neglecting her
children, that she has shown no acknowledgment or insight of her role in the
reasons that the children are and remain in the State’s custody, that the children
have expressed fear of her, it is apparent that there has been little positive
change in her behavior or mental state and a lasting change, in all reasonable
probability is unlikely.
5. [Mother] has graduated from college and is an intelligent woman. She is
able to recite appropriate discipline parenting techniques of rewards and
consequences and taking away privileges; she is able to recite that corporal
punishment “should only be used as a very last resort.” She has not, however,
evidenced her being able to transfer her academic knowledge of appropriate
parenting into “real life” parenting as evidenced by her recent conduct
involving her two year old granddaughter.
6. The Court, therefore, finds and so hold that the GAL and DCS have proven
by clear and convincing evidence that the children have been removed from
the home of their mother for a period of six months; that conditions exist, other
than those which resulted in the children’s removal, which in all reasonable
probability would cause the children to be subjected to further abuse and
neglect should they be returned to the mother’s care and custody; that these
conditions prevent the children’s safe return to the mother’s care; and that
there is little likelihood that these conditions will be remedied at an early date
so that the children can be returned to the mother in the near future; and 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.
The children have been in custody of the Department of Children’s Services
for over seven years. The mother has been in therapy for almost two years
with minimal results. There have been other therapy providers prior to the
current provider. The mother has shown a continued propensity to use
corporal punishment on children in her care. While she graduated from East
Tennessee State University with two degrees over eighteen months ago, she
is still unemployed and is making little, if any, effort to become employed.
The children will require superior parenting skills to address their mental
health problems and behaviors. Although [Mother] can recite academically
-33-
appropriate parenting skills, she has not demonstrated parenting skills which
would be adequate to parent significantly less challenging children. The Court
further finds and so holds that the GAL and DCS have proven by clear and
convincing evidence 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. The children have been in DCS custody for over seven
and one-half years. During that time the mother, [Mother], has not made any
significant progress on correcting the conditions which resulted in the children
remaining in foster care. According to every mental health expert that
provided testimony in this matter, there is little likelihood that significant and
sufficient progress could be made in the near future. [Hunter] is well integrated
into a foster home and the foster parent desires to adopt him. [Sierra] has made
significant progress on her behaviors and she is ready to be released from
residential placement and placed in an appropriate therapeutic foster home.
Any further delays in terminating the parent and child relationship just further
delays integration of the children into a safe, stable and permanent home.
Therefore the Court finds and so holds that the GAL and DCS have proven by
clear and convincing evidence that the conditions required to prove the
statutory grounds for termination of parental rights pursuant to T.C.A. § 36-1-
113(g)(3) “persistent conditions” have been proven as to [Mother].
***
Best Interests:
1. The Court has carefully considered each of the statutory factors of “best
interests” contained in T.C.A. § 36-1-113(i).
2. The Court finds from the testimony of the witnesses, the exhibits entered
into evidence, and the record as a whole that the GAL and DCS have proven
by clear and convincing evidence that it is in the best interests of the children
that the parental rights of [Mother] be terminated.
3. The Court finds that [Mother] has not made such an adjustment in her
circumstance, conduct or conditions as to make it safe and in the children’s
best interest to be returned to her home. The incident with [Mother’s] two year
old granddaughter, which she did not deny, gives the Court great concern,
specifically considering that the termination of the last two trial home
placements were the direct result of [Mother] using inappropriate corporal
punishment on Sierra after the Court had specifically prohibited the mother
using corporal punishment on the children. The mother’s progress in therapy
over 41 months has been “minimal”. The parenting assessment showed a high
risk of abuse and neglect. No mental health professional, including the
-34-
mother’s therapist, was able to testify that it was in the children’s best interests
to be returned to their mother. Wherefore the Court finds and so holds,
pursuant to T.C.A. § 36-1-113(i)(1) that the GAL and DCS have proven by
clear and convincing evidence that it is in the best interests of [Sierra] and
[Hunter] that the parental rights of their mother, [Mother], be terminated for
her failure to make such an adjustment of her circumstance, conduct or
conditions so that is in the children’s best interest to be returned to her home.
4. The Court finds and holds from the testimony of the witnesses, the exhibits
entered into evidence and the record as a whole that the GAL and DCS have
proven by clear and convincing evidence that it is in the best interests of the
children that the parental rights of [Mother] be terminated as she has not made
a lasting adjustment after reasonable efforts by DCS for such a duration of
time that lasting adjustment does not reasonably appear possible. The children
have been in foster care for over seven and one-half years. The Court finds
that there has been extensive involvement by the Department of Children’s
Services and many other mental health and social services agencies. The DCS
has provided residential treatment for Sierra for approximately one year. The
mother has participated in bi-weekly family therapy with Sierra. The mother
has participated in family therapy with Hunter. [Mother], has been in
individual therapy for almost two years and yet has made only minimal
progress. There has been a parenting assessment by Dr. John [Angelopoulos]
with numerous recommendations, including anger management, in which the
mother failed to participate. There has been therapeutic visitation services
provided between Hunter and his mother. Hunter remains afraid of his mother
and appears relieved when the visits are concluded, clinging to his foster
mother. There have been three trial home placements, all of which were
ultimately terminated. There has been such an extensive set of services
provided for such an extended period of time with such little adjustment in the
mother’s conduct that any las[t]ing adjustment does not reasonably appear
possible. The Court finds that DCS has made more than reasonable efforts to
attempt to assist the mother and to remedy the reasons that resulted in
continued foster care for these children. The Court finds and so holds,
pursuant to T.C.A. § 36-1-113(i)(2) that the GAL and DCS have proven by
clear and convincing evidence that it is in the best interests of [Sierra] and
[Hunter] that the parental rights of their mother, [Mother], be terminated for
failure to make such a lasting adjustment after reasonable efforts by DCS, for
such a duration of time that a lasting adjustment does not reasonably appear
possible.
5. The Court finds and holds from the testimony of the witnesses, the exhibits
entered into evidence and the record as a whole that the GAL and DCS have
-35-
proven by clear and convincing evidence that it is in the best interests of the
children that the parental rights of [Mother] be terminated as she has not
established or maintained a meaningful relationship with the children. The
children have expressed fear of their mother. Hunter does not talk about his
mother other than to show anxiety when he was required to visit with her. He
appeared relieved when the visits were over. The individual who is
supervising the visitation between Hunter and his mother has to “prod” them
during the visits. Sierra has repeatedly suffered physical injuries by her mother
in that she had a bloody mouth and visible hand marks and bruises during trial
home placements. The perpetrator of the sexual abuse on Sierra (her half-
sister) was recently residing with [Mother]. With the exception of the three
failed trial home placements, the longest of which was about six weeks, the
children have not spent any meaningful time with their mother in over seven
years. Hunter did not, until recently, realize that he had been removed from
[Mother’s] custody. The Court interprets the relationship between Sierra and
her mother as not a parent-child relationship but as a diversion from Sierra’s
residential placement. The Court, therefore, holds, pursuant to T.C.A. § 36-1-
113(i)(4) that the GAL and DCS have proven by clear and convincing
evidence that it is in the best interests of [Sierra] and [Hunter] that the parental
rights of their mother, [Mother], be terminated for her failure to establish or
maintain a meaningful relationship with the children.
6. The Court finds and holds from the testimony of the witnesses, the exhibits
entered into evidence and the record as a whole that the GAL and DCS have
proven by clear and convincing evidence that it is in the best interests of the
children that the parental rights of [Mother] be terminated as a change in care[-
]givers at this point in their lives would be detrimental to their emotional,
psychological and medical conditions. The Court holds that a change of care[-
]givers and physical environment would likely have a very negative effect on
Hunter’s emotional, psychological and medical condition. He is stable,
apparently for one of the first times in his life. He is making progress on his
behavior. He has a loving relationship with his foster mother. He calls her
“Mom.” He has asked her when she is going to adopt him. A change in care[-
]givers would have a very negative effect on him. Sierra needs a change of
care[-]givers and physical environment based upon the testimony of her
therapist in that she needs to be able to step down to a very safe and structured
foster home at this point. Based on the testimony of the therapists, the
mother’s recent history of inflicting corporal punishment on her two year old
granddaughter and the mother’s suggestion of taking the toddler out to
physically punish her where no one can hear or observe, the Court finds that
the mother, [Mother], in all reasonable probability, will not and cannot provide
-36-
the type of safe and stable environment required to meet Sierra’s emotional
and psychological needs. The Court, therefore, holds, pursuant to T.C.A. § 36-
1-113(i)(5) that the GAL and DCS have proven by clear and convincing
evidence that it is in the best interests of [Sierra] and [Hunter] that the parental
rights of their mother, [Mother], be terminated because a change in care[-
]givers to the mother at this point in their lives would be detrimental to the
children’s emotional and psychological well[-]being.
7. The Court finds and holds from the testimony of the witnesses, the exhibits
entered into evidence and the record as a whole that the GAL and DCS have
proven by clear and convincing evidence that it is in the best interests of the
children that the parental rights of [Mother] be terminated as [Mother’s]
mental and emotional status will be detrimental to the children and prevents
her from effectively parenting the children. The Court finds that the mother’s
emotional and mental status at this point would be detrimental to the children
and would prevent her from effectively providing safe and stable care and
supervision for the children. [Mother’s] demeanor when testifying, her lack of
credibility, and the testimony of the therapists and mental health experts leave
little doubt that she has emotional and/or mental issues that prevent her from
being an effective parent for these two children, especially when these children
need consistent and exceptional parenting skills to meet their needs.
Wherefore the Court finds and so rules, pursuant to T.C.A. § 36-1-113(i)(8)
that the GAL and DCS have proven by clear and convincing evidence that it
is in the best interests of [Sierra] and [Hunter] that the parental rights of their
mother, [Mother] be terminated because her emotional and/or mental status
would be detrimental to the children and prevent her from effectively
providing safe and stable care and supervision for the children.
8. The Court finds and holds from the testimony of the witnesses, the exhibits
entered into evidence and the record as a whole that the GAL and DCS have
proven by clear and convincing evidence the statutory grounds for termination
of parental rights pursuant to T.C.A. § 36-1-113(g)(1), abandonment for
willful failure to pay child support; and T.C.A. § 36-1-113(g)(3), persistence
of conditions. Further, the Court finds that the GAL and DCS have proven by
clear and convincing evidence that it is in the best interests of the children
[Sierra] and [Hunter] that the parental rights of [Mother] be terminated
pursuant to the provisions of T.C.A. §§ 36-1-113(i)(1), (2), (4), (5) and (8).
Therefore the Court finds and so holds that the GAL and DCS have proven by
clear and convincing evidence that the conditions for termination of parental
rights as set forth in T.C.A. § 36-1-113(c)(1) and (2) have been established in
this matter. Therefore, that the parental rights of [Mother] to the children,
[Sierra] and [Hunter] be and are terminated.
-37-
Mother appeals to this Court the termination of her parental rights.
Discussion
Although not stated exactly as such, Mother raises three issues on appeal: 1)
whether the Juvenile Court erred in finding and holding that clear and convincing evidence
existed to terminate her parental rights to the Children pursuant to Tenn. Code Ann. § 36-1-
113(g)(1) for willful failure to provide support; 2) whether the Juvenile Court erred in
finding and holding that clear and convincing evidence existed to terminate Mother’s
parental rights to the Children pursuant to Tenn. Code Ann. § 36-1-113(g)(3) for persistent
conditions; and, 3) whether the Juvenile Court erred in finding by clear and convincing
evidence that it was in the Children’s best interest for Mother’s parental rights to be
terminated.
Our review is de novo upon the record, accompanied by a presumption of
correctness of the findings of fact of the trial court, unless the preponderance of the evidence
is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001).
A trial court's conclusions of law are subject to a de novo review with no presumption of
correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn.
2001).
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
-38-
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 supporting any single ground will justify a termination order. E.g.,
In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
We first address whether grounds existed to terminate Mother’s parental rights
to the Children pursuant to Tenn. Code Ann. § 36-1-113 (g)(1) for willful failure to provide
support. In pertinent part, Tenn. Code Ann. § 36-1-113 (g) provides:
(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:
(1) Abandonment by the parent or guardian, as defined in § 36-1-102,
has occurred;
-39-
Tenn. Code Ann. § 36-1-113 (g)(1) (2010). As pertinent to this appeal, Tenn. Code Ann. §
36-1-102 provides:
(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:
(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;
***
(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;….
Tenn. Code Ann. § 36-1-102 (1)(i) (2010).
In her brief on appeal, Mother admits that she was aware of her duty to support
the Children and aware that her child support obligation was $180.00 per month. Mother,
however, argues that she made “in excess of $10,000 [in child support payments] over the
seven and a half years (7.5) that the children were in DCS custody,” and that “[s]he continued
to make these child support payments despite lack of stable employment.” Mother has
missed the point.
The statute specifically requires that courts consider the relevant four month
period “immediately preceding the filing of a proceeding or pleading to terminate the
parental rights …,” not other periods of time. Tenn. Code Ann. § 36-1-102(1)(A)(i) (2010).
The fact that Mother may have made child support payments at some point in the past is
immaterial to the analysis. The Juvenile Court found by clear and convincing evidence that
Mother had paid only $20.00 in child support during the relevant four month period, and
further found that this amounted to token support. The evidence in the record on appeal does
not preponderate against these findings.
-40-
Mother also argues on appeal that her failure to pay child support was not
willful because she was unable to provide support. The Juvenile Court, however, found
Mother not to be credible particularly with regard to her testimony about the fact that
although she obtained two college degrees she is unable to obtain any employment and
unable to work. The Juvenile Court also found that Mother spent, by her own admission,
$90.00 per month on cigarettes, and was able to treat her adult daughter to concert tickets,
despite her assertions that she was unable to provide support for the Children.
We give great deference to a trial court’s credibility determinations. As our
Supreme Court has instructed:
When credibility and weight to be given testimony are involved, considerable
deference must be afforded to the trial court when the trial judge had the
opportunity to observe the witnesses’ demeanor and to hear in-court testimony.
Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997) (quoting Randolph v.
Randolph, 937 S.W.2d 815, 819 (Tenn. 1996)). Because trial courts are able
to observe the witnesses, assess their demeanor, and evaluate other indicators
of credibility, an assessment of credibility will not be overturned on appeal
absent clear and convincing evidence to the contrary. Wells v. Bd. of Regents,
9 S.W.3d 779, 783 (Tenn. 1999).
Hughes v. Metro. Gov’t of Nashville and Davidson County, 340 S.W.3d 352, 360 (Tenn.
2011).
We will not overturn the Juvenile Court’s assessment of Mother’s lack of
credibility. As the evidence does not preponderate against the findings made by the Juvenile
Court by clear and convincing evidence, we find no error in the Juvenile Court’s finding and
holding that grounds existed to terminate Mother’s parental rights to the Children pursuant
to Tenn. Code Ann. § 36-1-113(g)(1) for willful failure to provide support.
We next consider whether the Juvenile Court erred in finding and holding that
clear and convincing evidence existed to terminate Mother’s parental rights to the Children
pursuant to Tenn. Code Ann. § 36-1-113(g)(3) for persistent conditions. In pertinent part,
Tenn. Code Ann. § 36-1-113(g)(3) provides that termination of parental rights may be based
upon the grounds that:
(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:
(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
-41-
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)(3) (2010).
In her brief on appeal, Mother states that Ms. Hatcher, Sierra’s therapist,
testified that Mother was mostly “on task” with therapy and that Mother’s progress was
“moderate and more than minimal.” Further, Mother states that Ms. Hatcher could not
conclusively state that reunification between Mother and Sierra within six months was not
possible. While it is true that Ms. Hatcher did make these statements during her testimony,
Mother ignores the other testimony given by Ms. Hatcher, and the testimony given by
numerous other therapists and mental health professionals, in addition to the other evidence
in the record, as discussed more fully above.
The Juvenile Court found and held that DCS had proven by clear and
convincing evidence that grounds existed to terminate Mother’s parental rights to the
Children pursuant to Tenn. Code Ann. § 36-1-113(g)(3) for persistent conditions. A careful
and thorough review of the record reveals that the evidence does not preponderate against
these findings. As such, we find no error in the Juvenile Court’s finding and holding that
clear and convincing evidence existed to terminate Mother’s parental rights to the Children
pursuant to Tenn. Code Ann. § 36-1-113(g)(3) for persistent conditions.
Finally, we consider whether the Juvenile Court erred in finding by clear and
convincing evidence that it was in the Children’s best interest for Mother’s parental rights
to be terminated. As pertinent to this issue, Tenn. Code Ann. § 36-1-113(i) provides:
(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
-42-
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 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) (2010).
The Juvenile Court considered all the relevant statutory factors and made very
specific and detailed findings with regard to the best interest analysis. The evidence in the
record does not preponderate against these findings. We find no error in the Juvenile Court’s
finding and holding that clear and convincing evidence was proven that it was in the best
interest of the Children for Mother’s parental rights to be terminated.
Conclusion
The judgment of the Juvenile Court is affirmed, and this cause is remanded to
the Juvenile Court for collection of the costs below. The costs on appeal are assessed against
the appellant, Susan M.M., and her surety, if any.
_________________________________
D. MICHAEL SWINEY, JUDGE
-43-