In the Matter of : Elizabeth N. M. ( 2011 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs September 27, 2011
IN THE MATTER OF: ELIZABETH N. M. ET AL.
Appeal from the Juvenile Court for Bedford County
No. 3455 Charles Rich, Judge
No. M2011-00724-COA-R3-PT - Filed October 19, 2011
The mother of two minor children appeals the termination of her parental rights. She
contends the evidence did not clearly and convincingly establish a statutory ground
supporting termination of her rights or that termination was in the children’s best interests.
We have determined that the evidence clearly and convincingly supports the trial court’s
findings and, thus, affirm the trial court in all respects.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
F RANK G. C LEMENT, J R., J., delivered the opinion of the Court, in which A NDY D. B ENNETT
and R ICHARD H. D INKINS, JJ., joined.
Trisha A. Bohlen, Bell Buckle, Tennessee, for the appellant, Ethel M. S.
Robert E. Cooper, Jr., Attorney General and Reporter, and Marcie E. Greene, Assistant
Attorney General, for the appellee, State of Tennessee, Department of Children’s Services.
OPINION
Elizabeth N. M., born in May of 1999, and Brook S., born in May of 2002, are the
subject of this action to terminate the parental rights of their parents. They have the same
mother, Ethel M. S., but they have different fathers. The parentage of the father of Elizabeth
and the father of Brook were established, and both men voluntarily surrendered their parental
rights and are no longer parties to this action. The only appellant is Ethel M. S. (“Mother”).
Although the Tennessee Department of Children’s Services has an extensive history
with Mother that goes back many years, matters leading up to this action arose on October
11, 2006, when the Department received a referral stating that the children were living in a
tent in someone’s backyard and were extremely dirty. An investigation was conducted that
confirmed the referral. The investigator administered drug tests to the parents. Mother tested
negative for drugs; Brook’s father (hereinafter “Mr. M.”), who was living with Mother and
the children, tested positive for cocaine. During the investigation, Mother also admitted that
she had prior involvement with the Department of Human Resources of the State of
Alabama, which arose from allegations that she was not taking proper care of her children.
On November 3, 2006, the Department filed a petition to adjudicate Elizabeth and
Brook dependent and neglected because of the above facts. The court appointed counsel to
represent Mother and, thereafter, Mother agreed to a safety plan. By order entered on
December 19, 2006, the children were declared dependent and neglected; however, they were
allowed to remain in Mother’s custody. As is customary with such cases, the case was set for
periodic reviews by the trial court.
No incidents arose thereafter until June 14, 2007, when the Department filed an
emergency motion to modify the safety plan due to the fact Mother’s youngest child, who
was one month old at the time, was found dead at Mother’s home. By order signed by the
trial judge on June 23 and entered on July 7, 2007, the court placed the children with the
paternal aunt and Mother’s contact with the children was restricted to supervised visitation.
Following a review hearing attended by the parties and their counsel on September 17, 2007,
the court found that the Department had provided reasonable efforts to prevent the removal
of the children, Elizabeth and Brook, that a Court Ordered Safety Plan had been in effect
since November 2006, that Mother’s one month old child had been found dead in her home,
that the court had placed the children with relatives, that the relatives were not able to care
for the children on a long term basis, and that the court found that the Safety Plan was no
longer adequate. Based upon these findings, custody of the children was removed from the
parents and legal custody was placed with the Department. As before, the case was set for
periodic review.
Nineteen months later, on January 3, 2009, following a successful trial home visit,
Elizabeth and Brook were returned to their mother’s custody to reside with her.
A mere three months later, on April 3, 2009, the Department filed a petition seeking
a restraining order against Mother and Mr. M. based upon allegations that he sexually abused
Elizabeth in their home. During interviews by an investigator for Child Protective Services,
it was discovered that the sexual abuse had occurred at least six times; the first occurring
prior to the children’s previous removal from Mother’s custody. In order to convey exactly
what had occurred and how it occurred, at the request of the investigator Elizabeth drew a
picture depicting several sexual acts. She also explained what had occurred. Elizabeth’s
drawings and accompanying explanation depicted and described overt sexual acts, both oral
and anal, and descriptions of bodily functions in details of which a child her age would have
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no knowledge but from personal experience. Elizabeth informed the investigator that these
events occurred while her mother was home. Elizabeth also described a tattoo on Mr. M’s.
body that could only be seen when he was not wearing underpants. It was later confirmed
that Mr. M. had a tattoo matching the description in the location Elizabeth stated.
The investigator and a detective also questioned Mr. M., but only briefly because he
was drunk. Mr. M. subsequently took a polygraph examination, which he failed in reference
to questions of sexual abuse of Elizabeth. Mother was informed of the results after which she
signed a protection agreement pursuant to which Mother expressly agreed to prohibit Mr. M.
from having any contact with her children. The Juvenile Court also issued a restraining order
prohibiting Mr. M. from having any contact with either child and prohibiting Mother from
allowing Mr. M. to have any contact with the children. The CPS investigator informed
Mother of the issuance of the restraining order and the restrictions stated therein.
Eight months later, on December 15, 2009, the Department responded to allegations
that Mother had allowed Mr. M. to be in contact with her children and that Mr. M. had again
sexually abused Elizabeth. Pursuant to protocol, Tammie Howell, an investigator, and Edna
Jenkins, a forensic interviewer, interviewed Elizabeth at Junior’s House Child Advocacy
Center. Elizabeth informed them that on the previous evening, December 14, her mother left
her alone in their home with Mr. M. while she went to the store. Elizabeth also informed the
investigator and forensic interviewer that Mr. M. made her perform oral sex on him, that he
preformed oral sex on her, and that he penetrated her bottom with his penis.
The investigator, along with a detective, questioned Mother at her home. She admitted
that she had left Elizabeth at home that evening while she went to the store; however, she
first insisted that a friend stayed with Elizabeth and that Mr. M. had not been at the home.
Upon further questioning, Mother admitted that the children “might have seen” Mr. M. out
in public but not at home; then she became very defensive and did not want to answer any
more questions. Prior to the conclusion of the interview, however, Mother admitted that Mr.
M. had been at the home that night but “only in the yard.” She later admitted – to no one’s
surprise – that this was a lie.
Subsequently, Ms. Howell questioned Brook while they were on the way to the
Department’s office. Although Brook had previously told Ms. Howell that she only sees Mr.
M. at the store, not at home; Brook admitted that she sees him at home because he comes
over to visit Mother, Brook, and Elizabeth at night. Brook also explained that she had not
told the truth earlier because her mother told her what happens in their house stays in their
house. Mother subsequently admitted that she instructed the children that “whatever happens
in the house, stays in the house.”
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The children were again removed and placed into the Department’s protective custody
on December 15, 2009. The reasons for the emergency removal were revealed in the petition
filed on December 17, 2009. In the petition the Department alleged that Mr. M. had again
sexually abused Elizabeth and that the severe abuse was due in part to the failure of Mother
to protect the children from Mr. M. The adjudicatory hearing was waived by Mother with her
counsel’s consent, a protective custody order was entered, and the children were placed in
the custody of the Department. Mother and Mr. M. were ordered to have no contact with the
children.
Thereafter, Mother and the case worker agreed upon a Permanency Plan, which was
ratified by the court on April 12, 2010, and the Department continued to exert reasonable
efforts to reunite Mother with her children or, alternatively, to make a permanent and
appropriate placement for the children.
In the interim, due to the recurring sexual assaults and Mother’s failure to protect the
children, the Department filed the appropriate motions seeking permission to be relieved of
the affirmative duty to make reasonable efforts to reunite Mother with the children. During
the evidentiary hearing on the motion, which occurred on June 21, 2010, Mother admitted
the children were dependent and neglected and severely abused. Following the evidentiary
hearing, the Juvenile Court found that the children had been severely abused pursuant to
Tenn. Code Ann. § 37-1-102(b)(23)(C). The court also found, based on the finding of severe
abuse and Mother’s complicity by failing to protect the children, that the Department was no
longer required to exert reasonable efforts toward reunification. The court also explained its
ruling to Mother, specifically that the Department was no longer required to assist her.
Thereafter, the Department filed separate petitions to terminate Mother’s parental
rights and the parental rights of the father of Elizabeth and the father of Brook.1 Both
petitions came on for trial on March 14, 2011. Witnesses called by the Department to prove
its cases included Ms. Tammie Howell, a forensic interviewer and former CPS investigator,
Ms. Sonya Stewart, one of the CPS investigators, and Ms. Jennifer Brown, a family services
worker with the Department. Mother, who was represented by counsel at all material times
in these proceedings, testified in defense of the petitions.
1
The petition to terminate the parental rights of Brook’s father and Mother was filed on August 20,
2010; the petition as to Elizabeth’s father and Mother was filed on October 1, 2010. Both men voluntarily
surrendered their parental rights prior to the final hearing and neither of them participated in the final
hearing. Although two separate petitions were filed, they were assigned the same docket number and were
tried together.
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By order entered on March 28, 2011, the Juvenile Court found that the Department
had proven three statutory grounds by clear and convincing evidence upon which Mother’s
rights could be terminated: severe child abuse, substantial noncompliance with her
responsibilities in the permanency plans, and failure to remedy the conditions that led to the
removal of the children. The court also found that clear and convincing evidence had been
presented to establish that termination was in the best interests of Elizabeth and Brook. Based
upon the above findings, the Juvenile Court entered a judgment terminating Mother’s
parental rights to both children. This appeal by Mother followed.2
A NALYSIS
Parental rights may be terminated only where a statutorily defined ground exists.
Tenn. Code Ann. § 36-1-113(c)(1); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In
re M.W.A., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998). The petitioner has the burden of
proving that there exists a statutory ground for termination, such as abandonment or failure
to remedy persistent conditions that led to the removal of the child. Tenn. Code Ann. §
36-1-113(c)(1); Jones, 92 S.W.3d at 838. Only one ground need be proven, so long as that
ground is proved by clear and convincing evidence. See In re D.L.B., 118 S.W.3d 360, 367
(Tenn. 2003). In addition to proving one of the grounds for termination, the petitioner must
prove that termination of parental rights is in the child’s best interest. Tenn. Code Ann. §
36-1-113(c)(2); In re F.R.R., 193 S.W.3d 528, 530 (Tenn. 2006); In re A.W., 114 S.W.3d
541, 544 (Tenn. Ct. App. 2003); In re C.W.W., 37 S.W.3d 467, 475-76 (Tenn. Ct. App. 2000)
(holding a court may terminate a parent’s parental rights if it finds by clear and convincing
evidence that one of the statutory grounds for termination of parental rights has been
established and that the termination of such rights is in the best interests of the child).
We have carefully examined the evidence in this record and determined that the
testimony by the witnesses on behalf of the Department at trial, along with the business
records and other documentary evidence introduced into evidence, clearly and convincingly
proved three statutory grounds for termination, including that of severe child abuse under
Tenn. Code Ann. § 36-1-113(g), and proved that termination of Mother’s parental rights was
in the best interests of the children under Tenn. Code Ann. § 36-1-113. As noted above, a
court may terminate a person’s parental rights if the existence of at least one statutory ground
is proven and it is proven that termination of the parent’s rights is in the best interest of the
child. Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H., 215 S.W.3d at 810; In re
Valentine, 79 S.W.3d at 546. Having determined that the requisite statutory requirements
2
As both Brook’s father and Elizabeth’s father voluntarily surrendered their parental rights, and the
Juvenile Court entered final judgments terminating their respective parental rights, the termination of both
men’s parental rights is final and res judicata.
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have been established in order to terminate Mother’s parental rights to Elizabeth and Brook,
we affirm the trial court in all respects.
I N C ONCLUSION
The judgment of the trial court is affirmed, and this matter is remanded with costs of
appeal assessed against the Department of Children’s Services due to the appellant’s
indigence.
______________________________
FRANK G. CLEMENT, JR., JUDGE
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