Dept.of Children's Svcs v. LaShondra Whaley ( 2001 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
December 11, 2001Session
STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v.
LaSHONDRA WHALEY
Appeal from the Juvenile Court for Bradley County
No. 7205-J C. Van Deacon, Judge
FILED MAY 30, 2002
No. E2001-00765-COA-R3-CV
This appeal from the Juvenile Court of Bradley County questions whether the Trial Court erred in
terminating the parental rights of Ms. Whaley. We reverse the judgment of the Trial Court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Reversed; Cause
Remanded
HOUSTON M. GODDARD, P.J., delivered the opinion of the court, in which HERSCHEL P. FRANKS and
CHARLES D. SUSANO, JR., JJ., joined.
Debra L. House, Cleveland, Tennessee, for the Appellant, LaShondra Whaley.
Paul G. Summers, Attorney General & Reporter, and Dianne Stamey Dycus, Deputy Attorney
General, Nashville, Tennessee, for the Appellee, State of Tennessee Department of Children's
Services.
OPINION
This is an appeal from Bradley County Juvenile Court whereby Ms. Whaley appeals the
decision of the Trial Court to terminate her parental rights and presents for our review four issues
which we restate:
I. Whether there is clear and convincing evidence that Ms.
Whaley's parental rights should be terminated.
II. Whether LaShondra Whaley is mentally incompetent,
pursuant to T.C.A. 36-1-113(G)(8), so as to prevent her from
parenting her minor child.
III. Whether the Tennessee Department of Children's Services
made reasonable efforts for the minor child to return home as
required by T.C.A. 37-1-166.
IV. Whether termination of Ms. Whaley's parental rights is in the
best interest of the minor child as set forth in T.C.A. 36-1-
113.
We reverse the decision of the Trial Court and remand for such further proceedings, as may be
necessary, consistent with this opinion.
This appeal concerns Ms. Whaley and her son, J.W, who was born on December 17, 1995.
From the time of his birth to the present, J.W. has had some significant health concerns including
atopic dermatitis, allergic rhinitis, recurrent sinusitis, and asthma. Additionally, J.W. was recently
diagnosed with a seizure disorder. J.W.’s health concerns require many prescription medications
to properly treat them including, but not limited to, breathing treatments for the asthma, creams for
skin problems, and oral medications.
According to the record, Ms. Whaley was hit by a car when she was a child and suffered a
traumatic brain injury. Additionally, Ms. Whaley has a visual impairment for which she uses
corrective lenses; though even with corrective lenses her vision remains significantly limited.
Further, she has a seizure disorder; however, at the time of trial she had not had a seizure for six
years.
On March 21, 1996, a Petition for Temporary Custody of J.W. was filed by the State of
Tennessee Department of Children's Services (hereinafter referred to as "DCS") wherein DCS
alleged that J.W. was a "dependent and neglected child" in that his mother, Ms. Whaley, was legally
blind and physically unable to care for a three month old child. The Petition further stated that J.W.
had been sick on several occasions, that he was not being fed properly, that Ms. Whaley was unable
to determine the proper temperature for his bottle, and that she had had to call 911 for medical
attention for the child. An Affidavit of Reasonable Efforts was filed on March 21, 1996, on behalf
of DCS which presented the following questions and answers in pertinent part:
1. Why is removal necessary to protect this child? Mother is legally
blind and physically unable to care for her child.
2. What are specific risks necessitating removal of the child? Mother
and child would need twenty-four-hour supervision to insure safety
and proper care of the child.
3. What specific services are necessary to allow the child to remain
in the home or to be returned to the home? Updated psychological
evaluation to determine extent of mom's mental and physical
disabilities. Parenting assessment of her ability to parent now or in
the future. Recommendations of how to assist her in
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learning/exhibiting appropriate parenting skills. Work with the State
of Tennessee Blind Service.
A Protective Custody Order was entered by the Juvenile Court on March 21, 1996, finding that J.W.
was a dependent neglected child and temporary care and custody was placed with the State of
Tennessee, Department of Health, for Foster Care.
On April 2, 1996, a Plan of Care was entered into by DCS and Ms. Whaley. There were five
obligations/responsibilities which Ms. Whaley was to assume. They are as follows:
1. LaShondra will visit [J.W.] on a regular basis (at least four hours
a month).
2. LaShondra will inform DHS of a change in address or phone or
anything else that is related to this plan.
3. LaShondra will take her medication as prescribed and see her
medical doctor as needed.
4. LaShondra will work with the Blind Services for the visually
impaired and take advantage of services and training this agency can
offer.
5. LaShondra will complete a neuropsychological evaluation and
follow recommendations of the evaluations.
On August 30, 1996, an Order was entered ratifying the Foster Care Plan prepared by DCS.
A Progress Report was completed on December 3, 1996, regarding J.W. The goal stated on
the Plan of Care/Foster Care Plan was "reunification." The following was stated with respect to Ms.
Whaley and her progress:
Mother attends weekly visitation with [J.W.]. Mother has completed
video parenting classes at Life Challenge. Mother keeps in touch
with DCS. Mother is working with Vocational Rehabilitation.
Mother has contacted the unemployment office about getting a job.
Father told DCS on 11/26/96 that he wants to surrender his parental
rights.
The continued risk factors that were listed in the Report include:
Mother has been missing appointments with the social worker from
TN Blind Services. (Thus missing out on opportunities to learn to
cook, budget, and function independently despite her vision
problems.) Mother continues to allow a paramour who has hurt her
and whom she has reported that she is afraid of to live in her home
without the knowledge of the housing authority. Mother goes off and
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stays gone for several days at a time, thus causing problems with
visitation which originally was set up to be supervised by family
members who live close to mother. Worker frequently has phone
conversations with mother when she sounds incoherent and her
speech is slurred. Mother experienced a severe head injury at age 7
and suffers from organic dementia. She also experienced permanent
optic nerve damage and is extremely near sighted (legally blind).
On January 28, 1997, an Order was entered awarding partial guardianship of J.W. to DCS,
as James Hardy Brown, the biological father of J.W., voluntarily surrendered his parental rights to
J.W. on January 6, 1997.
On May 20, 1997, another review was held and Ms. Whaley was in attendance. At that time
DCS continued to state that the goal for permanency was for J.W. to return home to his mother.
Further, the Report stated with respect to Ms. Whaley's compliance with the plan of care that "most
tasks" were completed and that her progress toward reducing risks requiring placement in custody
was "favorable." The report reflects that Ms. Whaley was attending weekly visitation, she had
completed her parenting classes, she was keeping in touch with DCS, she was working with
Vocational Rehabilitation and was on the waiting list to start the Bradley Developmental Center
program.
Ms. Whaley's Risk Factors included most of those listed previously, such as the incoherent
phone conversations, the head injury, the vision problem, and the fact that she takes Dilantin for
seizures and Darvocet for headaches. The Report further stated that Dr. Hillner had completed a
psycho-neurological test on Ms. Whaley but that he had not cooperated in releasing that information
to DCS. Finally, the report stated, “It is felt by this worker that [J.W.] would be at risk for injury
if he were left alone with his mother without supervision by another adult. DCS continues to
supervise mother's visits for [J.W.'s] safety.”
On August 13, 1997, a Progress Report was completed which stated that the goal in the Plan
of Care was reunification and the projected date for the goal achievement was May 1, 1997.
Additionally, the Report stated that J.W. has a small hole in his heart and is being monitored by a
cardiologist at T.C. Thompson Children’s Hospital. It further noted that J.W. has fetal dilantin
syndrome and that he is developmentally delayed, has severe eczema, allergies, asthma and had
tubes placed in his ears.
With respect to Ms. Whaley’s progress the Report mirrored the May 20, 1997 Report with
one exception; that Ms. Whaley visits with J.W. every week at the DCS office for an hour. Finally,
regarding continued risk factors, the Report stated verbatim the language of the May 20, 1997,
Report except for the first line concerning incoherent phone conversations, which was not included
in this report.
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The next Progress Report dated 2/17/98 stated that Ms. Whaley continued to have regular
quality visits and that she was scheduled to begin vocational training within a week at Tennessee
Vocational Rehabilitation in Smyrna. It further stated in the visitation summary that Ms. Whaley
was faithful to visit with her son even though she had to walk to the visits. Ms. Whaley’s continued
risk factors were listed as needing to continue to have regular quality visits, needing a referral for
a psychological evaluation and parenting skills evaluation and needing to complete her vocational
training.
A further Progress Report completed on February 22, 1999, stated that there were some
concerns with mother’s ability to provide appropriate care for J.W.’s medical problems and
behaviors because of her visual impairment. Under the “Family Functioning” heading the Report
stated as follows:
Ms. Whaley loves her child and visits regularly usually walking to the
visit and arriving many times an hour to an hour and a half prior to
the visit to make sure that she is there. There is no question that Ms.
Whaley loves her child dearly and desires to do the best for him.
However, because of her disabilities this may be impossible.
The Risk Factors set forth were stated as:
1. Ms. Whaley needs to complete her training at Voc. Rehab in
Smyrna. 2. Ms. Whaley will have a parenting assessment by Dr.
Hillner as soon as she completes the program in Smyrna and returns
full time to the area. Future plans can be better determined after the
receipt of the results of Dr. Hillner’s assessment.
On August 17, 1999, DCS conducted a periodic review of Ms. Whaley and J.W. The
permanency goal stated was for J.W. to return home. It was further stated that the need for foster
care still existed, that DCS had completed its tasks with respect to compliance with the plan of care,
and that Ms. Whaley had completed most tasks. Ms. Whaley’s progress toward reducing risks
requiring placement in custody was listed as “favorable.” Barriers listed to achieving the desired
outcome were “mother’s medical and physical needs.” Under “recommendations” DCS stated,
“Mother have parent assessment by Dr. Hillner or another Dr. immediately and proceed with
termination of parental rights if results are not positive.”
Six months later, on February 15, 2000, another Progress Report was completed which stated
as follows:
LaShondra had a psychological evaluation completed by BRI on
November 22, 1999. We had requested a parenting assessment. Dr.
Biller indicated from his testing that LaShondra has limited cognitive
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ability and her ability to care for the health of her infant son is very
limited.
Under the heading, Family Functioning, DCS stated:
LaShondra is a single, black, female that is in the mildly mentally
retarded range of intellect. She is also severely visually impaired.
Also, she has a limited cognitive ability, which impairs her ability to
provide proper parental care of [J.W.] who has medical problems of
his own and needs breathing treatment in times when his chronic
asthma is active. LaShondra loves this child very much and desires
to provide his care. LaShondra is very faithful to do whatever is
requested of her.
There were two Risk Factors listed which included the need to have an additional assessment with
Dr. Biller observing Ms. Whaley’s interaction with J.W. and Ms. Whaley’s need to complete
vocational rehabilitation training. The recommendations made by DCS were that the present
placement of J.W. be continued and to proceed with the termination of Ms. Whaley’s parental rights,
and that Dr. Biller complete his assessment within one month.
The Petition to Terminate Parental Rights filed on May 9, 2000, and the amended Petition
filed on July 28, 2000, stated two statutory bases in support of the Petition, T.C.A. 36-1-
113(g)(3)(A), and T.C.A. 36-1-113(g)(8)(B) and T.C.A. 36-1-113(g)(8)(C), which are as follows:
(g) Initiation of termination of parental or guardianship rights may be
based upon any of the following grounds:
...
(3) (A) The child has been removed from the home of the parent or
guardian by order of a court for a period of six (6) months and:
(i) The conditions which led to the child's removal or other conditions
which in all reasonable probability would cause the child to be
subjected to further abuse or neglect and which, therefore, prevent the
child's safe return to the care of the parent(s) or guardian(s), still
persist;
(ii) There is little likelihood that these conditions will be remedied at
an early date so that the child can be safely returned to the parent(s)
or guardian(s) in the near future; and
(iii) The continuation of the parent or guardian and child relationship
greatly diminishes the child's chances of early integration into a safe,
stable and permanent home.
...
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(8)(B) The court may terminate the parental or guardianship rights of
that person if it determines on the basis of clear and convincing
evidence that:
(i) The parent or guardian of the child is incompetent to adequately
provide for the further care and supervision of the child because the
parent's or guardian's mental condition is presently so impaired and
is so likely to remain so that it is unlikely that the parent or guardian
will be able to assume or resume the care of and responsibility for the
child in the near future, and
(ii) That termination of parental or guardian rights is in the best
interest of the child.
(C) In the circumstances described under subdivisions (A) and (B),
no willfulness in the failure of the parent or guardian to establish the
parent's or guardian's ability to care for the child need be shown to
establish that the parental or guardianship rights should be
terminated.
On November 20, 2000, a hearing was held on the Petition to Terminate the parental rights
of Ms. Whaley. The first witness called by DCS was Dr. Tom Biller, a psychologist who testified
as an expert witness. Dr. Biller conducted a psychological evaluation of Ms. Whaley on November
22, 1999. Dr. Biller testified that Ms. Whaley had no diagnosis on the Axis I, and on Axis II she
received two diagnoses. One was a mild mental retardation diagnosis as a result of the injuries she
sustained in being struck by a car as a child and the other was paranoid personality disorder, which
is, according to his testimony, “where an individual has a characteristic way of viewing the world
as a threatening or hostile place.” He further stated, “that individual has a tendency to be overly
cautious and very guarded in the way that they respond to other people, and anticipate the worst in
situations with others.” On the Axis III, Dr. Biller listed Ms. Whaley’s visual impairment and her
seizure disorder. As for her Axis IV diagnosis, Dr. Biller listed “social problems and separation
from family.” Finally, Ms. Whaley received a 50/55 on her Axis V, GAF1, which was “secondary
to limited cognitive ability and paranoia.” Dr. Biller testified that GAF 50/55 was within the
moderate range in terms of security. When asked on direct examination about Ms. Whaley’s
cognitive ability, Dr. Biller stated the following:
Now, from a purely cognitive standpoint, an individual with
limited intellectual ability can function in the same space through
repetition, and training, and habit. But if that space or if that
environment changes, the individual does not have the ability to adapt
through changes and to make the subtle changes in behavior needed
to meet a challenge of a new environment. They become very
1
GAF is Global Assessment of Functioning, which, according to testimon y by D r. Biller, assesses o ne’s ability
to function.
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determined functionally fixed. They are fixated a certain way of
doing things, and if they have a change it really throws them for a
loss.
And when you’re dealing with children, the thing that we
know about children is that they are change. And the environment
which children live is an environment that is filled with change. And
that makes it very difficult for someone with limited cognitive ability
to work with the children, because it’s so hard to have a consistent
environment that does not change from moment to moment.
On cross-examination, Dr. Biller testified that Ms. Whaley was given two different series of
tests which required visual responses. On neither test was any accommodation made for Ms.
Whaley’s visual impairment. Dr. Biller further testified that the responses given by Ms. Whaley
indicated that she was able to see the designs on the cards well enough to make them out. The
second visual test was a “hand test” that Ms. Whaley was given and she was also able to perform that
test without any visual accommodations. Finally, with respect to Ms. Whaley’s ability to care for
her son, Dr. Biller responded as follows:
Q. Okay. You conclude in your report that Ms. Whaley had a
limited cognitive ability to care for her son and I think you
testified about that. Was it true at this point that she couldn’t
care for her son?
A [Dr. Biller] If she had 24/7 assistance. In other words, she
would not be able to ever care for her son safely without
assistance.
Q. With assistance she might be able to?
A [Dr. Biller] She would not do it the assistant would.
Q. With assistance though?
A [Dr. Biller] That’s correct, with assistance.
Q. I look at her ability to meet the immediate physical needs of
the child. She isn’t mean to her child, is she?
A [Dr. Biller] Only from the standpoint that she has limited
ability to meet the needs and may overlook dangers and
problems that should be caught exactly.
The next person to testify was Ms. Mary Elliott, the home county case manager. Ms. Elliott
testified that she had supervised and monitored some of the visitation between Ms. Whaley and her
son. Ms. Elliott testified that there were times that Ms. Whaley would have to be encouraged to
comfort J.W. when he was upset or crying. She further testified that when J.W. was much younger
Ms. Whaley had to be reminded on several occasions to check his diaper. She testified to one
incident when J.W. was having a “tantrum” and Ms. Elliott had to assist her with it. Additionally,
Ms. Elliott stated, “[o]nce we got her in the habit of comforting him and showing her and reminding
her and telling her to pick him up, you know, to hold him, you know, to rub his back, or you know,
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to talk to him softly, tell him it was okay, that -- and she started doing that.” When asked about
family members or other persons willing to assist Ms. Whaley with her son, Ms. Elliott testified that,
“LaShondra had indicated that there was a Margenia Makissit that was interested, but that was after
we had filed a petition to terminate. And I explained to her at that point in time it was late in the
game.”
Following the testimony of Ms. Elliott, the guardian ad litem, Ms. Ginger Wilson, testified.
On direct examination Ms. Wilson testified that she had had two contacts with J.W. during the four
years and eight months J.W. had been in foster care. She testified that she saw him in 1996 at the
DCS office and in October, 2000, and that she had never seen him with his mother. Ms. Wilson
further testified that she had met with Ms. Whaley on two occasions, one in 1996 at Ms. Whaley’s
home and once in October, 2000. She recalled that she might have talked with Ms. Whaley on the
phone and met with her at some other point. Ms. Wilson was asked on direct examination if she
noticed any change in Ms. Whaley’s ability to care for J.W. from the first visit in 1996 to the second
visit in October, 2000. Ms. Wilson responded on direct exam as follows:
A [Ms. Wilson] I really did not see a change in LaShondra as far
as the interaction and communication I had with LaShondra.
When I met with her in 1996 it was in the context of her
apartment and talking about [J.W.] and how to care for [J.W.].
And when I met with her in October of 2000 it was in my
office, and we addressed the same subject of [J.W.] and how
to care for [J.W.].
I don’t think there has been really any change
positively or negatively since 1996. I think basically the
skills that she had in 1996, the reasoning that -- the responses
to questions about caring for James are basically the same
now as they were before.
Q. Do you think the child might be at risk if placed with her in
her care?
A [Ms. Wilson] I think that is possible if placed with LaShondra
in her care solely. The concern is her ability to care for the
child. For instance, I specifically asked her in my office in
October about caring for [J.W.] and if he needs medication
“What should you do?” or “If he had yelled what would you
do?” “I would call a nurse.” “I would call the hospital.” And
never able to tell me what she could do to direct the
immediate needs of the child.
Q. Do you think that the child might be at risk of harm were he
able to be placed with her given his medical conditions?
A [Ms. Wilson] I think, yes. Because I don’t think she fully,
from the questions I asked her, understands his medical
condition or what -- how to treat his medical condition if it
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required her to take some action to address any -- like, if he
had an asthma attack what she could do besides calling
someone else to address those immediate problems that might
arise.
Q. And would that be the same with the seizure disorder also?
A [Ms. Wilson] Yes.
Ms. Karen Buff, a vocational rehabilitation counselor for Services for the Blind testified that
she had been working with Ms. Whaley for over two years. Ms. Buff testified that her job
responsibilities include helping individuals to obtain employment and to enhance their quality of life.
She further testified that Ms. Whaley had received counseling and guidance toward training for a
professional goal and that Ms. Whaley had been fully cooperative with the program during her
participation. She testified that Ms. Whaley attended the Tennessee Rehabilitation Program in
Smyrna, Tennessee and that she successfully met the criteria for the Custodial Vocational Training
Program and has obtained a cleaning job at the Bradley Mall. Ms. Buff testified that she still
maintains contact with Ms. Whaley and continues to provide services such as transportation. When
asked whether she believed Ms. Whaley was able to live independently Ms. Buff responded that she
was able to. She further testified that she had been to Ms. Whaley’s home and that everything
appeared fine.
Finally, Ms. Margenia Makissit testified that she was a retired public school teacher and
certified foster parent and that she has known Ms. Whaley all her life. Ms. Makissit testified that
she attends church with Ms. Whaley every Sunday and that she has kept up with J.W. through Ms.
Whaley but that she has never actually met him. Ms. Makissit testified that she has contact with Ms.
Whaley once or twice each week and that they live in the same neighborhood. Ms. Makissit stated
that she is willing to allow Ms. Whaley and J.W. to live in her home and assist Ms. Whaley in
raising J.W. She further testified that she is fully aware of J.W.’s special needs as well as Ms.
Whaley’s limitations. Ms. Makissit also testified that she had spoken with Ms. Elliott in May or
June of 2000 and told her she was willing to do whatever she could to help Ms. Whaley. On cross-
examination, Ms. Makissit was asked whether she was willing to assume the financial responsibility
of J.W. and she testified as follows:
A [Ms. Makissit] Financial responsibility? Now how do you
mean that?
Q. You would probably have to pay for his care and his
medicine.
A [Ms. Makissit] No, the only way that I would take this
responsibility is through the Department of Human Services
under supervision.
Q. So your idea is to leave him in our care legally and that you
would be as a foster parent? Is that the idea?
A [Ms. Makissit] That would be the only way.
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Q. That would be the only way. So that we would continue to
cover him insurance wise and be the legal custodians, but you
would be willing physically to take -- undertake his and
LaShondra -- and have LaShondra move into your house with
you?
A [Ms. Makissit] Yes, I’m willing.
In the Order entered on February 28, 2001 terminating Ms. Whaley’s parental rights, the Trial
Court stated the following with respect to the termination:
Based on the testimony, this Court finds that [J.W.] is a medically
needy child who requires intensive care and monitoring. This Court
finds that when the father, surrendered his rights to this infant in late
1996 early 1997 this court addressed its concerns to LaShondra
Whaley about its concerns and the continuing medical problems of
J.W. It is now 4 years down the road and there is no meaningful
relationship between the mother and the child. Mrs. Whaley has done
a remarkable job of achieving the goals of the permanency plan to the
best of her ability and she has substantially complied with the
permanency plan but the situation is still marginal. However, the
conditions that led to the removal continue to persist. The child has
medical problems that require at times immediate emergency help,
someone must be there to administer life saving procedure to insure
medical intervention. These conditions have persisted for over 6
months (since August, 1996). The conditions under reasonable
probability will continue given the physical needs of this child thus
the continuation of the parent child relationship prevents his safe
return under Tennessee Code Annotated 36-1-113(g)(3)(A) in that the
child has been removed from his mother for a period longer than six
(6) months (in this matter for 4 years) and the conditions continue to
persist (T.C.A. 36-1-113(g)(3)(A)(i). This is not through fault of the
mother who has changed as much as possible but still cannot provide
safe or appropriate supervision of this medically needy child.
Additionally under T.C.A. 36-1-113(g)(8)(B)(i) the parent is impaired
and thus cannot provide a safe atmosphere for [J.W.]. The court finds
that the requirement of T.C.A. 36-1-113(g)(8)(B)(i) is met. The
termination is in [J.W.’s] best interest. Placing him with his mother
might pose a risk to his psychological and physical well being.
We review the Trial Court’s findings of fact de novo upon the record of the proceedings
below, with a presumption of correctness “unless the preponderance of the evidence is otherwise.”
Tenn. R. App. P. 13(d); see also Hass v. Knighton, 676 S.W.2d 554 (Tenn. 1984). There is no
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presumption of correctness with regard to the Trial Court’s conclusions of law, and those
conclusions are reviewed de novo. Jahn v. Jahn, 932 S.W.2d 939 (Tenn. Ct. App. 1996).
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.” 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)).
In order to terminate a parent's rights to his or her child, the trial court must make two
findings. The court first must find, by clear and convincing evidence, that one of the asserted
grounds for termination has been established. T.C.A. 36-1-113(c)(1). Once the court has made this
finding, the court additionally must find that termination of a parent's rights is in the child's best
interest. T.C.A. 36-1-113(c). Before a parent’s rights may be terminated, there must first be a
showing that the parent is unfit or substantial harm to the child will result if those rights are not
terminated. In re Swanson, 2 S.W.3d 180 (Tenn. 1999). Before the trial court may inquire as to
whether the termination is in the best interests of the child, it must first determine that the grounds
for termination have been established by clear and convincing evidence. T.C.A. 36-1-113(c). A
court’s findings by clear and convincing evidence that one or more of the statutory grounds for
termination have been met and that it is in the best interest of the child to do so satisfy the
requirement of showing that the parent is unfit or that substantial harm to the child will result if
parental rights are not terminated. This Court discussed the “clear and convincing evidence”
standard in O’Daniel v. Messier, 905 S.W.2d 182 (Tenn. Ct. App. 1995), as follows:
The "clear and convincing evidence" standard defies precise
definition. Majors v. Smith, 776 S.W.2d 538, 540
(Tenn.Ct.App.1989). While it is more exacting than the
preponderance of the evidence standard, Santosky v. Kramer, 455
U.S. at 766, 102 S.Ct. at 1401; Rentenbach Eng'g Co. v. General
Realty Ltd., 707 S.W.2d 524, 527 (Tenn.Ct.App.1985), it does not
require such certainty as the beyond a reasonable doubt standard.
Brandon v. Wright, 838 S.W.2d 532, 536 (Tenn.Ct.App.1992); State
v. Groves, 735 S.W.2d 843, 846 (Tenn.Crim.App.1987).
Clear and convincing evidence eliminates any serious or
substantial doubt concerning the correctness of the conclusions to be
drawn from the evidence. See Hodges v. S.C. Toof & Co., 833
S.W.2d 896, 901 n. 3 (Tenn.1992). It should produce in the
fact-finder's mind a firm belief or conviction with regard to the truth
of the allegations sought to be established. In re Estate of Armstrong,
859 S.W.2d 323, 328 (Tenn.Ct.App.1993); Brandon v. Wright, 838
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S.W.2d at 536; Wiltcher v. Bradley, 708 S.W.2d 407, 411
(Tenn.Ct.App.1985).
O’Daniel v. Messier, 905 S.W.2d 182, 188 (Tenn. Ct. App. 1995).
In making the best-interest determination, the trial court is required to consider, inter alia,
the following factors as codified in T.C.A. 36-1-113(i):
(1) Whether the parent or guardian has made such an
adjustment of circumstance, conduct, or conditions as to make it safe
and in the child's best interest to be in the home of the parent or
guardian;
(2) Whether the parent or guardian has failed to effect a
lasting adjustment after reasonable efforts by available social services
agencies for such duration of time that lasting adjustment does not
reasonably appear possible;
(3) Whether the parent or guardian has maintained regular
visitation or other contact with the child;
(4) Whether a meaningful relationship has otherwise been
established between the parent or guardian and the child;
(5) The effect a change of caretakers and physical
environment is likely to have on the child's emotional, psychological
and medical condition;
(6) Whether the parent or guardian, or other person residing
with the parent or guardian, has shown brutality, physical, sexual,
emotional or psychological abuse, or neglect toward other children 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 [DCS]
pursuant to § 36-5-101.
A termination of parental rights may be based upon one of several statutory grounds as set
forth in T.C.A. 36-1-113(g). This Court has recognized that any one of these bases will support a
termination of parental rights. See In re C.W.W., 37 S.W.3d 467 (Tenn. Ct. App. 2000). Our
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Supreme Court has held that mental disability can be the basis for the termination of parental rights.
State v. Smith, 785 S.W.2d 336 (Tenn. 1990). In the case sub judice, we must affirm the Trial
Court’s judgment terminating Ms. Whaley’s parental rights if the record contains clear and
convincing evidence to support even one of the bases found by the Trial Court. In re C.W.W., 37
S.W.3d 467 (Tenn. Ct. App. 2000).
I.
The first issue on appeal questions whether there is clear and convincing evidence that Ms.
Whaley's parental rights should be terminated. Ms. Whaley argues that the department’s reliance
upon T.C.A. 36-1-113(g)(3)(A) is misplaced. She admits that while her son has been removed from
her custody for more than six months, the state has not carried its burden in proving by “clear and
convincing” evidence that those conditions leading to the removal of J.W. still persist. Ms. Whaley
argues that she has successfully completed parenting classes, she completed a rehabilitation program
where she learned independent living skills, she has a home adequate for herself and her child, and
she has become employed. Additionally, Ms. Whaley asserts that she has transportation available
within the community, and she continues to work with Blind Services. Finally, Ms. Whaley submits
that the issue of “early integration into a safe, stable and permanent home” is not an issue as DCS
never made any effort to determine whether integration of J.W. back into her home was possible.
The State argues that Ms. Whaley failed to remedy the persistent conditions that have
prevented the return of J.W. to her home. More specifically, the State asserts that Ms. Whaley failed
to learn how to provide for J.W.’s special needs. Further, it maintains that Ms. Whaley’s visual
impairment and her mild mental retardation limit her ability to do anything other than simple tasks.
The State relies on the testimony of Dr. Biller that Ms. Whaley is unable to care for her son without
twenty-four hour assistance and that Ms. Whaley might overlook dangers and problems resulting
from his medical conditions. The State also contends that Ms. Whaley’s level of functioning has not
improved since 1996 according to Dr. Biller and that there is little likelihood that these conditions
will be remedied at an early date. Lastly, the State argues that continuation of the parent/child
relationship greatly diminishes J.W.’s chances of early integration into a stable and permanent home
and that in order for J.W. to be adopted, Ms. Whaley’s rights must be terminated.
We agree with Ms. Whaley’s argument that the State failed to show clear and convincing
evidence that grounds for termination of parental rights exist. The State of Tennessee sets forth its
first basis for termination, T.C.A. 36-1-113(g)(3)(A), which is that the child has been removed from
the home of the parent by order of a court for a period of six months and the following:
(i) The conditions which led to the child's removal or other conditions
which in all reasonable probability would cause the child to be
subjected to further abuse or neglect and which, therefore, prevent the
child's safe return to the care of the parent(s) or guardian(s), still
persist;
(ii) There is little likelihood that these conditions will be remedied at
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an early date so that the child can be safely returned to the parent(s)
or guardian(s) in the near future; and (iii) The continuation of the
parent or guardian and child relationship greatly diminishes the
child's chances of early integration into a safe, stable and permanent
home.
While there is no question that J.W. has been removed from Ms. Whaley’s home for a period
of six months, the statute requires that the other three conditions be shown by clear and convincing
evidence. First, the state must show that the conditions set forth in the initial petition for removal
which led to J.W.’s removal or other conditions which in all reasonable probability would cause him
to be subjected to further abuse or neglect and which, therefore, prevent the child's safe return to the
care of the parent still persist. T.C.A. 36-1-113(g)(3)(A)(i). The initial petition for removal states
that Ms. Whaley is legally blind, she is unable to care for J.W., she is having difficulty properly
medicating him, she is having difficulty feeding J.W. properly, and that there were no family
members willing or able to help her care for her child. The state has failed to show by clear and
convincing evidence that these conditions still persist.
The evidence in the record is uncontroverted with respect to the fact that Ms. Whaley is
visually impaired. However, this impairment has not prevented her from being somewhat self
sufficient in that she has been living alone in an apartment for several years. Nor has it prevented
her from fully complying with all the goals set forth by DCS. Her visual impairment did not prevent
her from attending almost every visitation with her son for the past five years. It has not prevented
her from walking to the visitation site for every visitation. It did not prevent her from completing
vocational training in custodial services and from obtaining a job as a custodian at a local mall. Ms.
Whaley is unable to obtain a license to operate a motor vehicle, however, she has access to
transportation through services available to her in the community. Ms. Whaley was able to complete
the visual aspects of the psychological evaluation given by Dr. Biller unassisted by visual
accommodations. Additionally, she has been working with Blind Services to learn ways to adapt
to her disability. Most importantly, the State has failed to show any evidence that Ms. Whaley’s
visual impairment has any impact on her ability to care for her son. The State has argued that the
mere fact that the disability exists is sufficient evidence to prove that Ms. Whaley is unable to ever
properly medicate J.W., yet there is no factual evidence to support such argument.
With respect to Ms. Whaley’s inability to “properly care for her son” there is very little
evidence in the record of that inability. Dr. Biller testified that during his evaluation of Ms. Whaley
he conducted a clinical interview wherein he asked questions about her daily living skills, he
performed the Rorschach Inkblot test which is a personality test, and he did a mental status
evaluation. Additionally, he relied upon a psychological evaluation performed on October 25, 1996.
Based upon the aforementioned, Dr. Biller testified that Ms. Whaley was diagnosed with paranoid
personality disorder and he asserted that a person suffering from this disorder views the world as a
threatening and hostile place and that that person would have a tendency to be overly cautious and
very guarded in the manner in which they respond to other people. Further, Dr. Biller testified that
he relied upon information obtained in1996 in concluding that her status of mental retardation had
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continued and that he did not anticipate any improvement in the future. Dr. Biller further testified
that because of her limited intellect, she would have difficulty doing things other than simple,
elementary tasks. Finally, Dr. Biller testified that someone with limited cognitive ability, such as
Ms. Whaley, can learn through repetition, training and habit. Dr. Biller’s concern, however, was that
children are constantly changing and, therefore, Ms. Whaley would be unable to adapt.
Dr. Biller’s primary concern was Ms. Whaley’s ability to care for a child with asthma. Ms.
Whaley expressed during her interview with Dr. Biller that she did not know how to perform a
breathing treatment because no one had ever taught her how to administer one. There is no evidence
in the record that anyone ever attempted to teach Ms. Whaley how to properly medicate her son and
that she was unable to do so. Most, if not all, of Dr. Biller’s testimony with regard to Ms. Whaley’s
intellectual capacity, cognitive ability and visual impairment is uncontroverted. However, the State
has failed to show how any of these problems actually do affect Ms. Whaley’s ability to care for J.W.
The DCS records indicate that a Dr. Hillner completed a parenting assessment of Ms. Whaley
in February, 1997, however, there continued to be DCS notes concerning the fact that the assessment
still needed to be completed as late as August 17, 1999. There are also indications in the record that
Dr. Hillner refused to release his results to DCS. It is unclear whether Ms. Whaley ever had any
testing done by Dr. Hillner as the “parenting assessment” was again mentioned on a February 15,
2000, comment that Dr. Biller needed to observe Ms. Whaley with her son. There is nothing in the
record to indicate that Dr. Biller ever completed this second assessment or that he ever observed Ms.
Whaley and J.W. interacting. Further, the assessment was listed in DCS records on February 15,
2000, as an incomplete task. DCS mentioned every review that a parenting assessment needed to
be completed, yet it does not appear that one was ever administered. Dr. Biller testified however,
that the psychological evaluation he performed on Ms. Whaley was a “parenting assessment.” It
appears that DCS intended to have Ms. Whaley complete a parenting assessment, that a Dr. Hillner
perhaps might have conducted such an assessment but would not release his results, and that DCS
then decided that the psychological evaluation already performed by Dr. Biller was sufficient.
Regarding the testimony by Ginger Wilson, the guardian ad litem, that J.W. might “possibly”
be at risk if he were placed with his mother, we find that nothing in her testimony establishes clear
and convincing evidence of a grounds for termination. Ms. Wilson visited with Ms. Whaley only
twice during a four and one-half year period. She met with J.W. only twice in a four and one-half
year period. She never observed Ms. Whaley and J.W. interacting, nor did she observe whether Ms.
Whaley had the ability to care for J.W., or medicate J.W. According to Ms. Wilson, she based her
testimony and conclusions upon questions she asked Ms. Whaley about how she would care for J.W.
For example, Ms. Wilson asked Ms. Whaley what she would do if J.W. needed medication and,
according to her testimony, Ms. Whaley responded that she would call a nurse or doctor or the
hospital. Ms. Wilson was concerned that Ms. Whaley was never able to express what she would do
to actually help her child other than call someone else. This child was removed from Ms.Whaley
when he was four months old. During the past four and one-half years Ms. Whaley has been
restricted to four hours of supervised visitation with her son per month. We do not find Ms.
Whaley’s responses to these questions unreasonable considering the very limited exposure Ms.
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Whaley has had to her son. It is not surprising that Ms. Whaley was unable to articulate how to react
to certain medical emergencies or how to provide care for her child when she has never been in a
position to actually do either. The mere fact that Ms. Whaley provided the aforementioned answers
to Ms. Wilson’s questions does not rise to the level of clear and convincing evidence that grounds
for termination of her parental rights exist.
Ms. Elliott, the case manager, testified that initially the concern with Ms. Whaley was her
inability to properly medicate J.W. Ms. Elliott further testified that the goal of having a Plan of Care
is to eliminate the risk factors which brought the child into DCS custody and that even though Ms.
Whaley did her very best in completing the goals, she was never able to eliminate those risks. Ms.
Elliott also stated that she did not believe there was anything DCS could have done to that would
enable Ms. Whaley to make her capable of caring for her child. Ms. Elliott testified about her
observations of Ms. Whaley with her son. The problems she observed Ms. Whaley having with J.W.
included Ms. Whaley not comforting her son, having to remind Ms. Whaley to check his diaper,
becoming frustrated with a tantrum and not knowing how to react. It is our determination that the
testimony of Ms. Elliott does not constitute clear and convincing evidence that Ms. Whaley is unable
to care for her son. Further, Ms. Elliott testified that once Ms. Whaley was taught how to comfort
her son, she was able to do so.
The State has put forth evidence that J.W. has bonded with his foster mother who intends to
adopt him if Ms. Whaley’s rights are terminated. J.W. was removed from his mother when he was
four months old. Since that time, Ms. Whaley has been allowed no more than one hour of
supervised visitation per week. According to testimony, J.W. had visitation in his mother’s home
once when he was an infant and never again. It is no surprise that J.W. has not bonded with Ms.
Whaley considering the very limited amount of time she has been allowed to spend with him. It is
a mystery to this Court as to why this mother, who has never harmed her child and does not pose any
threat to him was never given an increase in visitation. There was no effort on the part of DCS for
this child to be integrated back into his mother’s home through increased visitation or attempts to
teach Ms. Whaley how to give her son the appropriate amounts of medication. What we find even
more disturbing is that Ms. Makissit, a retired school teacher and certified foster parent and neighbor
to Ms.Whaley, contacted DCS one more than one occasion at least six months prior to the hearing
on this matter offering her home to Ms. Whaley and J.W. and that the only response she received
from DCS was that it was “too late.” If nothing else, Ms. Makissit’s home could have served as a
place for Ms. Whaley to spend more time with her son under the supervision of Ms. Makissit.
Because DCS has failed to show clear and convincing evidence that the conditions which led
to J.W.’s removal still persist, T.C.A. 36-1-113(g)(3)(A)(i), it is not necessary to address T.C.A. 36-
1-113(g)(3)(A)(ii) and (iii).
The second factor DCS relied upon in petitioning to terminate Ms. Whaley’s parental rights
was T.C.A. 36-1-36-1-113(g)(8)(B), which states that it must be shown by clear and convincing
evidence that the parent of the child is incompetent to adequately provide care and supervision
because the parent’s mental condition is so impaired and likely to remain so that it is unlikely that
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the parent will be able to assume care and responsibility for the child in the future. While it is
uncontroverted that Ms. Whaley has a low IQ and has been diagnosed as mildly mentally retarded,
we find that the State has not proven by clear and convincing evidence that Ms. Whaley is
incompetent to such a degree that she is unable to care for her child now or that she will be unable
to care for him in the future. Ms. Whaley has managed to live alone and take care of herself for
several years. She has attended almost every scheduled visitation with her son. When Ms. Whaley
lived in Smyrna and was in vocational training she rode a Greyhound bus back to Cleveland every
other weekend to visit with her son. She has been able to regulate and properly administer her own
prescription medications. She has completed vocational training and has obtained a job. She is able
to move about the community using public transportation. Ms. Whaley manages to get herself to
work on the correct days and at the correct time as well as attending church every Sunday. Most
importantly, Ms. Whaley has a friend who is a retired educator and foster parent willing to assist her
in the parenting of her child. These factors negate the argument that Ms. Whaley is incompetent to
provide care and supervision to a child.
The evidence presented by the State in this case is insufficient to abrogate the fundamental
right of Ms. Whaley to the care, custody and control of her child. Because we reverse the Trial Court
for the aforementioned reasons, the other issues Ms. Whaley raises on appeal are pretermitted.
For the foregoing reasons the judgment of the Trial Court is reversed and this cause is
remanded to the Trial Court for further investigation into the possibility of placing J.W. and Ms.
Whaley in the home of Ms. Makissit, or in the event that is not an option, to allow J. W. to remain
in his current foster placement but to increase Ms. Whaley’s visitation in a effort to integrate J.W.
back into his mother’s life. Costs of appeal as well as costs below are adjudged against the Appellee,
State of Tennessee Department of Children’s Services.
_________________________________________
HOUSTON M. GODDARD, PRESIDING JUDGE
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