Department of Children's services v. R.A.W. ( 2003 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs October 20, 2003 Session
STATE OF TENNESSEE, DEPARTMENT OF
CHILDREN'S SERVICES v. R.A.W.
Appeal from the Juvenile Court for Greene County
No. 15766 Thomas J. Wright, Judge
FILED NOVEMBER 25, 2003
No. E2003-00847-COA-R3-PT
R.A.W. (“Father”) challenges the termination of his parental rights, claiming there was insufficient
proof to establish grounds for termination or that it was in the best interest of the child to terminate
the parent-child relationship. Father also claims the Juvenile Court erred when it refused to grant
him visitation after the petition to terminate his parental rights had been filed. We affirm the
decision of the Juvenile Court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the
Juvenile Court Affirmed; Case Remanded.
D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HOUSTON M. GODDARD , P.J.,
and HERSCHEL P. FRANKS, J., joined.
Douglas L. Payne, Greeneville, Tennessee, for the Appellant R.A.W.
Paul G. Summers, Attorney General and Reporter, and Dianne Stamey Dycus, Deputy Attorney
General, Nashville, Tennessee, for the Appellee State of Tennessee, Department of Children's
Services.
OPINION
Background
Father appeals the termination of his parental rights to his now six year old son,
T.A.W. (“the Child”), by the Greene County Juvenile Court. When the Child originally came into
custody of the Department of Children’s Services (“DCS”), he was living with his mother’s aunt and
uncle, Mr. and Mrs. Nance, his two year old half-sister, and his eight month old half-brother. In
October of 2001, DCS was informed that the children were at a flea market with Mr. and Mrs. Nance
and that they were not dressed appropriately for cold weather. The youngest child was examined by
EMS personnel and was found to be cold and unresponsive. The Child also was cold and stated he
was afraid of Mr. Nance who had hurt his arm. There were bruises on the Child’s arm and the back
of his neck. All three children had active head lice. Witnesses stated Mr. Nance had picked up the
Child and thrown him into a van, stating he was going to “beat the hell out of him” and “would beat
his ass.” Mr. and Mrs. Nance were arrested and charged in relation to these events. The Petition for
Temporary Custody indicates Father’s whereabouts were “currently unknown.”
The petition seeking to terminate Father’s parental rights alleged Father had willfully
failed to visit or to engage in more than token visitation with the Child for a period of four
consecutive months preceding the filing of the petition. It also was alleged that Father had willfully
abandoned the Child by not paying any child support for a period of four consecutive months. DCS
asserted it had made reasonable efforts to assist Father in establishing a suitable home for the Child,
but he had not made a reasonable effort to accomplish this objective. DCS claimed Father
demonstrated such a lack of concern that it appeared unlikely he would be able to provide a suitable
home for the Child. The Petition also alleged that the conditions preventing Father from providing
a suitable home for the Child still remained and had persisted for a period of six months. According
to the Petition, continuing the parent-child relationship would greatly diminish the Child’s chances
of early integration into a stable and permanent home. Finally, DCS maintained that termination of
the parent-child relationship was in the best interests of the Child.1
The Permanency Plan (“the Plan”) developed for Father contained numerous items
which he needed to complete. These included: (1) completing a psychological assessment which
included a parenting capability assessment; (2) attending and successfully completing a parenting
class; (3) paying child support; (4) remaining drug free and submitting to random drug screens; (5)
providing appropriate and safe housing for the Child independent of Father’s parents “due to
disclosures of previous abuse” by Father’s father; (6) maintaining adequate transportation in the
event of an emergency; (7) attending counseling for past/current behavioral issues; and (8)
maintaining stable employment. The Plan was approved by DCS in July of 2002 and by the Juvenile
1
DCS also filed a petition to terminate the parental right of the mother with regard to all three of her children.
The mother did not contest the petition and has not appealed the Juvenile Court’s judgment which terminated her parental
rights.
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Court in October. Father apparently refused to sign the Plan because he wanted to discuss the Plan
with an attorney.
In July of 2002, Father filed a motion seeking to establish visitation with the Child.
On October 23, 2002, a hearing was held on this motion at which time the Juvenile Court received
evidence and heard testimony. After this hearing, the Juvenile Court entered an Order and deferred
granting Father visitation until Father “has participated significantly in intensive individual
counseling.” The record on appeal contains neither a transcript or statement of the evidence of this
hearing.
A trial was conducted on January 15th and March 12th of 2003.2 The first witness was
Father’s sister, Toni Malone (“Malone”). Malone testified Father has problems with conflict and
dealing with “reality issues.” When something happens that Father does not like, he has trouble
“figuring out what to do with that and how to ventilate … that anger.” Ms. Malone did not believe
Father was capable of taking care of himself, “let alone anybody else.” However, Ms. Malone also
believed Father had the potential to change.
Bill Cook (“Cook”), a Licensed Senior Psychological Examiner, testified that he
began treating Father in June of 2001. Father started therapy with Cook after Father was released
from Lakeshore Mental Health Institute (“Lakeshore”). The records from Lakeshore indicate Father
had been in his car for three days and refused to get out even to eat, and also that Father made a
bomb threat against his employer. Father denied making a bomb threat and claimed he was framed.
Father apparently told a crisis worker that he heard voices over the PA system at work talking to him,
but Father later denied making such a statement. Cook saw Father on two occasions and then did
not see him again until custody of the Child became an issue. Cook expressed concern over Father’s
denial of his mental health history. Cook also talked with Father about an incident where Father
allegedly assaulted a ten year old girl. Father claimed he was getting out of a booth at a Waffle
House when his foot “tapped” the girl. Cook asked Father about the fact that the young girl had a
bruise of some size, to which Father stated that maybe someone else had hit the child.3
According to Cook, Father thinks in terms of “black and white and wrong and right.”
Father could give a “pat answer” when there was a clear right or wrong answer, but “if it required
abstracting he had … a lot of difficulty with that.” Father explained to Cook that he had graduated
from anger control management classes and if he became angry while with the Child, he would count
to ten or go walk off the anger. If provoked to anger, Father stated that he would “lose it” if he did
not count to ten or go for a walk. Cook had asked Father to schedule appointments for every two
weeks, but Father scheduled appointments only for once a month. Father completed approximately
2
In July of 2002, Father’s parents filed a motion to intervene and a petition for custody of the Child. This
petition was the primary focus of the hearing in January of 2003. Father’s parents eventually dismissed their petition.
W e will not discuss testimony or evidence at the January hearing to the extent such evidence pertains only to the
abandoned petition for custody.
3
Father made these denials notwithstanding the fact that he had already pled guilty to assaulting the girl.
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five therapy sessions with Cook since October. Father had an appointment with Cook scheduled the
morning of the January hearing. Father was late and when he showed up, he informed Cook he was
no longer employed. According to Father, he was unable to obtain his work schedule. He missed
one day of work and was fired. Cook stated Father would have “a lot of difficulty” raising the Child.
However, Father had improved and was trying. Cook saw no reason why Father could not visit with
the Child, although Cook recommended any initial visits be supervised. Cook did not believe Father
was dangerous or that he posed a threat to the Child or others, “unless he were to go off his
medication or he was to be provoked into some sort of anger.” Cook testified that Father has been
diagnosed with mood disorder, not otherwise specified, and personality disorder, not otherwise
specified. According to Cook, the personality disorder comes from years of learning and experience
and “[u]ndoing the personality disorder is very difficult and it takes time, lots of time sometimes.”
Cook acknowledged Father’s telling him that establishing a residence and obtaining transportation
might be insurmountable for him.
At the end of the hearing in January of 2003, the Juvenile Court continued the matter
until March. One of the reasons for the continuance was to give Father more time to comply with
the terms of the Plan. When the hearing resumed in March, Cook testified that Father had made no
further progress with regard to controlling his emotions and no progress on his parenting skills.
According to Cook, whenever Father’s emotions become involved, he is “unable basically … to
function. He loses the ability to be rational.” Cook believed Father would have difficulty forming
a plan or doing what was necessary if parenting a six year old child. When asked if Father had the
ability to take proper care of the Child, Cook responded Father “would have a lot of difficulty, if he
could at all ….” Cook testified that if Father quit taking his medications, and depending on his level
of stress, Father would begin to regress, become more depressed and have mood swings, and
“possibly hear voices, possibly get back in the situation where he was not bathing and staying in the
car.” If that were to happen, Father could pose a danger to himself or others.
Father testified at the initial hearing in January that he was living with his parents.
Father had completed a parenting class and he explained how that class helped him interact with his
niece and be more tolerant toward her. Father was current on child support payments. According
to Father, he had been recently discharged from his job at a grocery store after he unsuccessfully
attempted to obtain his work schedule, but no one at work would answer the phone. When he missed
one day of work, he was discharged. Father had a vehicle but it was not driveable because the engine
had caught on fire. Father claimed he was taking his medication in the prescribed doses. Father
believed it would be best for the Child if Father’s parents had custody at first because Father could
not financially support the Child. Father stated he would like for his parents to have custody until
he could get back on his feet. If his parents had custody, he would assist them in caring for the
Child. Father testified to an incident where his father had been drinking too much and pulled a gun
on Father and his mother. His father was arrested for aggravated assault and pled guilty to simple
assault. Father admitted the last time he saw the Child was in April of 2001.
Father testified further when the hearing was concluded in March. By that time,
Father was staying with a friend and sleeping on a couch. Father had remained unemployed since
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January and was now behind on child support payments. Father testified he was attempting to find
employment. Father still has no reliable transportation. Father’s driver’s license was revoked after
he received a speeding ticket and failed to show proof of insurance. Father had quit taking his
medication for approximately one month due to lack of funds. Father has noticed a “slight” change
in his emotional state, but “nothing major.” Father admitted that he has visited the Child only ten
times since the Child was six months old.
The Child’s biological mother, K.H. was called as a witness. K.H. acknowledged that
the Juvenile Court already had terminated her parental rights to the Child. K.H. stated that for a
period of time, Father questioned whether he was the biological father of the Child. K.H. testified
that Father has seen the Child approximately three times since she and Father quit seeing each other
approximately five months after the Child was born. She also claimed Father did not spend much
time at all with the Child for the first five months after he was born.
The next witness was Lana Justis (“Justis”), the DCS caseworker assigned to this
case. Justis identified the Plan and stated she discussed its requirements with Father, but Father
refused to sign the Plan. The Plan required Father to complete a psychological assessment and a
parenting class, both of which he did accomplish. Justis testified Father was current on his child
support payments until he lost his job in January of 2003. The Plan also required Father to secure
appropriate housing for the Child independent of his parents. The reason for this was the assault
conviction against Father’s father and Father’s claim that his father had abused him as a child. Justis
testified that to her knowledge, Father still was living with his parents. The Plan also required Father
to obtain suitable transportation. Justis stated Father’s vehicle was not operational due to a fire.
Justis further testified that to her knowledge, Father remained unemployed.
Father called Michael Vitale, Sr. (“Vitale”) as a witness. Vitale testified he drove
Father to visit the Child on the Child’s fourth birthday. Vitale testified to the positive interaction
he observed between Father and the Child. Father was living with Vitale and Vitale’s fiancee at the
time of this hearing. Father was sleeping on Vitale’s couch.
After the proof was completed, the Juvenile Court concluded the State failed to prove
by clear and convincing evidence that Father had abandoned the Child because of his willful failure
to pay child support. However, the Juvenile Court found the State had proven by clear and
convincing evidence that Father abandoned the Child by willfully failing to visit the Child for a
period of four consecutive months preceding the filing of the petition. The Juvenile Court observed
that after the Child had reached the age of six months, for the next four year period, Father only
visited the Child from three to ten times, depending on whose testimony was credited. After the
Child was placed in State custody, Father did not visit or attempt to visit the Child until after the
petition to terminate his parental rights was filed in June of 2002.
The Juvenile Court also concluded the State made a reasonable effort to assist Father
with establishing a suitable home for the Child. Father, however, had made no reasonable effort to
provide a suitable home for the Child and demonstrated a lack of concern to such a degree that it
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appeared unlikely he would be able to provide a suitable home at an early date. According to the
Juvenile Court, Father, who at that point was sleeping on a friend’s couch, did not have a suitable
home for the Child. Father made little to no progress with regard to his parenting skills or his anger
management. Father had no transportation or a valid driver’s license, and was unemployed. In short,
Father was unable to provide for the Child. The Juvenile Court then concluded the State had proven
by clear and convincing evidence that these “other conditions” which, in all reasonable probability
would cause the Child to be subjected to further abuse or neglect, continued to persist and prevented
awarding custody to Father. The Juvenile Court determined there was little likelihood that these
conditions would be remedied at an early date.
The Juvenile Court stated that between the January and March hearings, Father had
“gone backwards because now he doesn’t even have a room or a car or a driver’s license or a job.
He’s not taking his medication admittedly and has had some regression in his emotional control.”
Based on these facts, the Juvenile Court concluded that continuation of the parent-child relationship
would diminish the Child’s chances of an early integration into a safe and stable home. The Juvenile
Court then thoroughly reviewed each of the statutory factors relevant to whether it was in the Child’s
best interests to terminate the parent-child relationship. After so doing, the Juvenile Court concluded
the evidence was clear and convincing that it was in the best interests of the child to terminate the
parent-child relationship.
Father appeals, claiming he did not have “an adequate opportunity to complete his
permanency plan” and, therefore, the Juvenile Court erred when it terminated his parental rights.
Alternatively, Father argues that he had sufficiently complied with the terms of the Plan and his
parental rights should not have been terminated. According to Father, the State did not prove by
clear and convincing evidence either that grounds for termination existed or that it was in the best
interest of the child to terminate the parent-child relationship. Father also claims the Juvenile Court
erred when it prohibited him from visiting with the Child.
Discussion
The factual findings of the Juvenile Court are accorded a presumption of correctness,
and we will not overturn those factual findings unless the evidence preponderates against them. See
Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). With respect to legal
issues, our review is conducted “under a pure de novo standard of review, according no deference
to the conclusions of law made by the lower courts.” Southern Constructors, Inc. v. Loudon County
Bd. Of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).
In State v. D.G.S.L., No. E2001-00742-COA-R3-JV, 2001 Tenn. App. LEXIS 941
(Tenn. Ct. App. Dec. 28, 2001), no appl. perm. appeal filed, this Court discussed the relevant burden
of proof in cases involving termination of parental rights. Specifically, we observed:
It is well established that "parents have a fundamental right to the
care, custody, and control of their children." In re Drinnon, 776
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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). 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
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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 S.W.2d at 536; Wiltcher v. Bradley, 708 S.W.2d
407, 411 (Tenn. Ct. App. 1985).…
State v. D.G.S.L., 2001 Tenn. App. LEXIS 941 at **16-18 (Tenn. Ct. App. Dec. 28, 2001).
Termination of parental rights may be based upon a number of statutory grounds. In
the present case, the two grounds upon which the Juvenile Court based its ruling are:
(1) Abandonment by the parent or guardian, as defined in § 36-1-
102, has occurred; [and]
****
(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.
Tenn. Code Ann. §§ 36-1-113(g)(1) and (g)(3) (Supp. 2003).
The Juvenile Court found there was clear and convincing evidence that both of these
statutory grounds for termination of Father’s parental rights had been met. In making this
determination, the Juvenile Court heard the testimony of numerous witnesses, including Father,
Justis, and Cook. “Unlike this Court, the [Juvenile Court] observed the manner and demeanor of
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the witnesses and was in the best position to evaluate their credibility.” Union Planters Nat’l Bank
v. Island Mgmt. Auth., Inc., 43 S.W.3d 498, 502 (Tenn. Ct. App. 2000). The trial court’s
determinations regarding credibility are accorded considerable deference by this Court. Id.; Davis
v. Liberty Mutual Ins. Co., 38 S.W.3d 560, 563 (Tenn. 2001). “‘[A]ppellate courts will not re-
evaluate a trial judge’s assessment of witness credibility absent clear and convincing evidence to the
contrary.’” Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999).
Based on our review of the record, including the facts detailed above, we do not
believe the Juvenile Court committed any reversible error in reaching its conclusion that clear and
convincing evidence existed to terminate Father’s parental rights pursuant to Tenn. Code Ann. § 36-
1-113(g)(3)(A)(i) through (iii). There is clear and convincing evidence that “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 … [Father] still persist.” Tenn. Code
Ann. § 36-1-113(g)(3)(A)(i). Specifically, Father is not and apparently never has had a suitable
home for the Child. At the time of the final hearing in March, Father was sleeping on a friend’s
couch. Father has not had suitable transportation for some time. Father was unemployed and had
no source of income with which to raise a young child. Equally important is the fact that Father had
stopped taking his medication and his emotional capacity was beginning to regress. There was
absolutely no proof offered at trial that any of these conditions would be remedied in the near future,
or if ever. Father had approximately eight months after the Plan’s requirements were explained to
him to substantially comply with those requirements. During that eight month period, not only has
Father made no reasonable effort to undertake what was necessary in order for him to be able to
properly support the Child, but he has gone “backwards.” We believe Father had sufficient time to
establish that he could or would make progress to the point where he would be able to care for the
Child, and he made no such showing. We likewise agree with the Juvenile Court that the evidence
is clear and convincing that continuation of the parent-child relationship would greatly diminish the
Child’s chances of early integration into a safe, stable and permanent home.
Having affirmed that at least one statutory ground for termination was proven by clear
and convincing evidence, we next address Father’s claim that it was not proven by clear and
convincing evidence that termination of his parental rights was in the best interests of the Child.
Tenn. Code Ann. § 36-1-113(i) describes the standard for determining whether termination is in the
best interests of the child in such cases:
(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;
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(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 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) (Supp. 2003). After considering all relevant statutory factors in light
of the testimony of the witnesses at trial, we do not believe the Juvenile Court committed reversible
error when it concluded that clear and convincing evidence established that it was in the best interest
of the Child to terminate Father’s parental rights.
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Because we affirm the termination of Father’s parental rights pursuant to Tenn. Code
Ann. §§ 36-1-113(g)(3)(A)(i) through (iii), we need not decide whether there was clear and
convincing evidence that Father abandoned the Child by willfully failing to visit him for a period of
four consecutive months immediately preceding the filing of the petition. Due to our resolution of
the preceding issues, all remaining issues are pretermitted as they would not affect the outcome of
this appeal.
Conclusion
The judgment of the Juvenile Court is affirmed, and this cause is remanded to the
Juvenile Court for such further proceedings as may be required, if any, consistent with this Opinion,
and for collection of the costs below. The costs on appeal are assessed against the Appellant R.A.W.
and his surety.
___________________________________
D. MICHAEL SWINEY, JUDGE
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