In Re B.D., R.M.T. & V.F.T. ( 2009 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
October 15, 2008 Session
IN RE B.D., R.M.T. & V.F.T.
Appeal from the Juvenile Court for Dickson County
No. 05-07-069-CC A. Andrew Jackson, Judge
__________________________
No. M2008-01174-COA-R3-PT - Filed March 2, 2009
__________________________
Mother and Father appeal the order of the Juvenile Court for Dickson County, Tennessee
terminating their parental rights. Mother’s termination was based on: noncompliance with the
permanency plan; failure to visit; failure to establish a suitable home; and the persistence of
conditions that prevent return of the children; and the children’s best interests. Father’s termination
was based on noncompliance with the permanency plan and the children’s best interests. Finding
by clear and convincing evidence that grounds for termination exist and that termination is in the
children’s best interests, as modified, the judgment is affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed in Part
and Reversed in Part
WALTER C. KURTZ, SR. J., delivered the opinion of the court, in which FRANK G. CLEMENT , JR., J.,
and RICHARD H. DINKINS, J., joined.
Hillary H. Duke, Dickson, Tennessee, for the appellant Regina C.
James L. Baum, Burns, Tennessee, for the appellant Nicholas T.
Robert E. Cooper, Jr., Attorney General and Reporter, and Dianne Stamey Dycus, Deputy Attorney
General, General Civil Division, Nashville, Tennessee, for the appellee, State of Tennessee,
Department of Children’s Services.
Jack L. Garton, Dickson, Tennessee, Guardian ad Litem for B.D.
B. Kyle Sanders, Dickson, Tennessee, Guardian ad Litem for R.M.T. and V.F.T.
1
OPINION
On May 11, 2007, the Department of Children’s Services [DCS] filed a petition seeking to
terminate the parental rights of appellants [“Father”] and [“Mother”] to their two children, R.M.T.,
(d.o.b. 01-28-98) and V.R.T. (d.o.b. 09-21-01). DCS also sought termination of Mother’s parental
rights to her son B.D. (d.o.b. 03-23-95). The termination petition was filed 32 months after the
children were taken into protective custody.
A bench trial was held before the juvenile court for Dickson County, Tennessee, the
Honorable A. Andrew Jackson presiding on November 16, 2007, February 29, 2008, and April 14,
20081. After the testimony of a number of mental health professionals, DCS workers including the
case manager, and both appellants, the juvenile court terminated their parental rights. The court
found that neither parent had substantially complied with permanency plans. Furthermore, he found
that Mother had also abandoned her children by failure to visit and by failure to provide a suitable
home, and that persistent conditions existed. As to both parents he found that termination was in
the best interests of the children. On May 12, 2008, the court entered an 11-page Order Terminating
Parental Rights and Final Decree of Guardianship, thereby terminating the rights of Mother and
Father. Father filed a notice of appeal on May 14, 2008, and Mother filed on May 22, 2008.
I. Relevant Facts
This case involves a family broken apart by the oldest minor child molesting his
younger half-siblings and also by parents who, even after the assistance of the state, seem incapable
of dealing with the aftermath of child sexual abuse and providing stability.
Mother’s son was by a prior relationship, while the two younger daughters were Mother’s
by her marriage to Father2. Mother and Father had been separated for four months at the time of the
removal. They have since divorced, and Mother had remarried by the time of the termination
hearing.
DCS became involved with this family after receiving a referral on September 14, 2004,
alleging that B.D. was inappropriately touching his half-sisters R.M.T. and V.R.T. DCS had Mother
sign a safety plan which required her to supervise her son B.D. when he was playing with his sisters.
On September 15, 2004, DCS received an additional referral that B.D. was acting in sexually
inappropriate ways with children in the neighborhood. On September 16, 2004, mother contacted
DCS to say that her son was acting out sexually and that she was unable to properly supervise him.
DCS then filed a petition in juvenile court for temporary custody of all three children and removed
1
The record does not disclose why the hearing took six months to complete when only three court dates
were involved.
2
The parental rights of son B.D.’s father were terminated by this action, but he has not appealed the
termination of his rights .
2
the children from Mother’s home.
At the time of the removal, Father and Mother had been separated for four months. They
later divorced. The divorce court gave Father custody of the two girls (subject to the juvenile court
orders), and Mother was given visitation rights to them and custody of her son B.D. Mother
subsequently remarried in March 2006.
According to DCS and the juvenile court, during the 2004 investigation, the mother first
denied and then later admitted firsthand knowledge of B.D.’s behavior. The court found that Mother
had instructed the children to lie to DCS and the police about what had been going on, even saying
to B.D. at the initial child and family team meeting, “Look what happens when you tell the truth.”
As a result, the juvenile court dissolved the safety plan and granted DCS custody of the children,
finding that DCS could not remedy the situation with the children at home. At a March 23, 2005,
adjudicatory hearing the court found the children to be dependant and neglected. The allegations
of sexual abuse against B.D. were determined to be true; B.D. admitted doing “nasty things” to his
sisters. Following removal from his mother’s home, B.D. claimed that Father had physically and
sexually abused him. Although these claims were investigated and found to be unsubstantiated,
B.D. was given a psychosexual evaluation that found that he was traumatized, had trouble
distinguishing between sex and violence, and, in general, needed a lot of help and treatment. After
a recommendation that B.D. not be placed in a home with his sisters, B.D. was placed at Reflections,
an adolescent sex offenders treatment program, where he has been making progress with his special
needs treatment.3
The two sisters, R.M.T. and V.F.T., as victims of sexual abuse, also required counseling and
treatment. They both received services from the Rape and Sexual Abuse Center (RASAC) and the
Child Advocacy Center. At the time of the trial, older sister R.M.T. had been able to work through
many of the issues associated with sexual abuse. Younger sister V.F.T.’ s behaviors initially
improved but then regressed, ultimately to the point where the foster mother could no longer
continue to provide a home to these girls.4
Based on the reasons for the removal of the children and their special needs related to the
sexual abuse, on October 15, 2004, DCS prepared permanency plans for both Mother (as to all three
of her children: B.D., R.M.T., and V.R.T.) and Father (as to his two girls: R.M.T. and V.R.T.). A
main purpose of these plans was to assist Mother and Father in learning how to effectively parent
these children with special needs due to sexual abuse. The plans listed a number of required tasks
3
B.D. alleged that Father had sexually and physically abused both him and his sisters. DCS investigated
on two separate occasions but found all claims to be unsubstantiated. This allegation was the basis for the state’s
requiring Father to participate in sex offender treatment and counseling .
4
The foster mother and counselor both testified at trial that V.F.T. exhibited signs of emotional
disturbance, such as frequent temper tantrums, nightmares, and wetting her pants at home and at day care.
3
and actions that Mother and Father needed to satisfy before family reunification could be considered
and the children safely returned home. The plans gave Mother and Father until April 12, 2005, to
satisfy those requirements.
The plans required Mother to do the following: to provide proper supervision for her children
at all times; to attend and participate in all sessions of RASAC counseling; to inform the case
manager of all changes in address and telephone number; to attend and participate in all sessions of
individual counseling; to inform the case manager of the therapist’s name; to sign a release of
information from the therapist so the case manager could monitor progress.
The plans required Father to do the following: to attend and participate in all sessions of
individual counseling; to inform the case manager of the therapist’s name; and to sign a release of
information from the therapist so the case manager could monitor progress.
Mother signed the plan on October 15, 2004, and Father signed the plan on December 2,
2004.
The permanency plans were revised on October 21, 2005. Father’s revised plan reiterated
the original requirements and added or changed the following requirements: to obtain a psychosexual
evaluation and follow the recommendations; to schedule an appointment within two days of the
staffing; to inform the case manager of the time, date and place of the psychosexual evaluation; to
inform the case manager of any problems he encountered scheduling the appointment or finding a
service provider; and to demonstrate appropriate parenting skills and age-appropriate discipline.
This revised plan gave Father until December 21, 2006 to satisfy the requirements.
Father signed the plan on October 21, 2005. Mother signed the revised plan, which included
the same original requirements, on October 27, 2005.
The permanency plans were again revised on May 16, 2006. Mother’s plan reiterated the
existing requirements and included additions and changes necessitated by Mother’s marriage to
Husband. Her new Husband was required to do the following: to schedule a clinical assessment that
included a parenting assessment; to inform the case manager of the time, date and place of the
appointment; to inform the case manager of any scheduling difficulties as assistance could be
provided; to sign a release of information so the case manager could communicate with the therapist
on his progress; and to provide adequate supervision for the children at all times. Husband was also
required to schedule an alcohol and drug assessment; inform the case manager of the date, time and
location of this assessment; and inform the case manager if he needed any assistance with scheduling
or funding this assessment. Husband was further required to follow the recommendations resulting
from this assessment. Additionally, Mother and Husband were required to follow the RASAC and
Centerstone safety plans that were to be in effect when the children returned home.
The revised plans gave Mother and Husband until October 16, 2006, to satisfy the
requirements, and they signed the plans on May 16, 2006.
4
Once again, the permanency plans were revised on January 25, 2007, reiterating the existing
requirements for Father, Mother and Husband. Father, however, was additionally required: to follow
the recommendations of the psychosexual evaluation; and to inform the case manager of any
problems or concerns with the in-home service provider or in scheduling appointments. These plans
gave Father, Mother and Husband until May 30, 2007 to satisfy the requirements. On January 25,
2007, Father by signature, “acknowledged that he h[ad] received a copy of Criteria and Procedures
for Termination of Parental Rights and h[ad] been given an explanation of its contents”; Mother
made no such acknowledgment. Neither Mother nor Father signed the permanency plan, and both
indicated that they did not agree with it. Mother wanted to review the plan with her attorney before
she signed. Father wrote, “I do not agree with filing a TPR due to the constant and consistent gaps
in helping me to meet goals on permanency plan.”
The January 25, 2007, plan set a permanency goal of adoption for the children, stating that
“[d]ue to the length of time the children have been in custody and persistence of conditions the
Department will file a TPR petition,” so the children “will have a permanent stable home and
family.” This new goal further stated, “When deemed appropriate, the Department will begin
searching for a permanent, stable home for [the children.]” . . . and they “will have memories of
[their] family by keeping a life book.” The expected achievement date for this new goal was January
25, 2008, with the responsible persons including DCS, adoption specialist and foster parent.
Mother remarried in March 2006 to [“Husband”] which created instant problems. Mother
admitted at trial that she had a history of domestic disputes with Husband prior to their marriage.
Some of these disputes resulted in police involvement and criminal charges being filed. Mother
denied that these were serious incidents. She explained that they resulted from Husband’s drug use
which she claimed had been resolved. Mother stated that she had known Husband since their
schooldays, and she did not see a problem in marrying someone with whom she had a history of
domestic violence, even though B.D., as a sex offender, had trouble distinguishing between sex and
violence.
On May 11, 2007,5 DCS filed a petition to terminate the parental rights of Mother and Father.
Against Mother, DCS alleged four grounds for termination: “Abandonment - Failure to Visit”;
“Abandonment - Failure to Provide Suitable Home”; “Substantial Noncompliance with Permanency
Plan;”and “Persistent Conditions.”
Against Father, DCS alleged the termination ground “Substantial Noncompliance with
Permanency Plan.” In the July 10, 2007, amended petition DCS alleged a second ground, “Severe
Child Abuse.”
5
According to DCS’s petition Mother’s last visit with the children was February 9, 2007. The foster
mother testified at trial that Mother also visited in late February or early March. Their first petition to terminate was
filed on May 11, 2007, which was not four months since Mother’s last visitation, as required by Tenn. Code Ann. §
36-1-102(1)(A)(I). The amended petition filed on July 10, 2007, met this time requirement.
5
DCS also alleged that it was in the children’s best interests to terminate both Mother’s and
Father’s parental rights.
The three-day trial was held over the course of five months on November 16, 2007, February
29, 2008, and April 14, 2008. Both Mother and Father were represented by counsel, as was DCS.
B.D’s guardian ad litem and R.M.T. and V.R.T.’s shared guardian ad litem also participated. The
juvenile court heard testimony from Mother, Father, B.D., the foster mother, the DCS case manager,
investigator, and several caseworkers and treatment providers assigned to Mother, Father, R.M.T.
and V.R.T., and B.D.
B.D.’s guardian ad litem told the Court that B.D. has always been adamant about wanting
to return to his Mother’s home, and he opined that Mother had no knowledge of or involvement in
his sexual abuse. Thus, the guardian ad litem “would like to see [B.D.] go home.” He also pointed
out that if there is no termination, then “that doesn’t mean he’s going back home to his mother today
. . . he still has a little ways to go.”
The guardian ad litem for R.M.T. and V.R.T., supported termination of Father’s rights
because Father never truly acknowledged their special needs and did not accept DCS’s services, so
his home is not appropriate. He also supported termination of Mother’s rights because she was
presently without a home.6 Mr. Sanders further stated that the children need stability and that if B.D.
is placed back with Mother, then the girls cannot live there. The girls, like B.D., had repeatedly
expressed that they desired to return to life with Mother and Father and said they loved them.
The juvenile court judge ruled orally that the parental rights of both Mother and Father
should be terminated. As to Father, the court stated that there was “no question there’s a substantial
noncompliance with the permanency plan.” The court found the following: that DCS had provided
two month’s rent so that Father could meet his medical insurance deductible, but Father cancelled
the insurance anyway; his psychosexual evaluation resulted in a defensive measure so high that the
results were inconclusive; he had not received a parenting assessment; and he had not received
individual counseling. The court found incredulous the fact that Father testified that he learned
about parenting his children and their special needs by talking to the foster parents and the people
who transported the children. The juvenile court did not, however, find that Father had sexually
abused B.D.
As to Mother, the court found that persistent conditions still existed because Mother was not
able to deal with the children’s problems. With regard to compliance and the best interest of the
children, the court further stated:
[Mother’s] jumped through all the hoops, but what’s she
learned? What’s she able to provide? What can she do for these
6
Mother testified on February 29, 2008, that she had been living with Husband in her grandmother’s three-
bedroom house near Chicago. However, the case manager testified on April 14, 2008, that Mother admitted she was
living with a friend in a hotel in Dickson. Mother did not testify again on April 14, 2008.
6
children? Can she, in fact, properly parent these children?
. . . I have to agree with the [State], it’s not so much that someone
complies with the permanency plan. It’s whether or not, as result of
their compliance with the permanency plan, they’re able to do the
things that they’ve learned in the plan. That they can provide for the
child appropriately.
And I think that that is exactly what compliance with the
permanency plan is. Here are the things you need to do, and after you
do these things, here’s the desired outcome. . . [I]s it in the best
interest of the child to go home, or the children to go home? And I
don’t see it; nor do I see that the conditions are going to remedy
themselves anytime soon, particularly with Mother, who is currently
homeless. I don’t see how that could even begin to cure itself
anytime soon.
The court did not in his oral ruling make mention of any abandonment by Mother, either by failure
to visit or by failure to provide a suitable home.
In a subsequent written order, the juvenile court found by clear and convincing evidence that
the following grounds existed to terminate Mother’s parental rights: abandonment by failure to visit
and by failure to provide a suitable home; persistence of conditions; and failure to comply with the
permanency plan’s obligations (substantial noncompliance), which were reasonably related to the
plan’s goals, and also that DCS had made reasonable efforts to assist Mother in satisfying these
requirements. The written order also contains the trial court’s conclusion that termination was in the
children’s best interests. Accordingly, the court terminated Mother’s parental rights as to all three
children.
As to Father’s rights, the trial court’s written order included its finding, by clear and
convincing evidence, that Father had also failed to comply with the rights and responsibilities of the
permanency plan, which were reasonably related to DCS’s goals, and DCS had made reasonable
efforts to assist him. The trial court concluded in the order that termination of Father’s parental
rights was also in the best interests of the two girls and so terminated them.
II. Issues on Appeal
Mother raises five issues on appeal:
1. Whether there was sufficient evidence that appellant abandoned the minor children
pursuant to Tenn. Code Ann. § 36-1-102(1)(A)(i).
2. Whether there was sufficient evidence that appellant abandoned the minor children
pursuant to Tenn. Code Ann. § 36-1-102(1)(A)(ii).
3. Whether there was sufficient evidence of appellant’s substantial noncompliance with
7
the stated goals of the permanency plan.
4. Whether there was sufficient evidence that the conditions which led to removal
persist.
5. Whether there was sufficient evidence that termination of the appellant’s parental
rights were in the best interest of the minor children.
Father raises three issues on appeal:
1. Whether appellant was denied a fair trial where the trial court applied the wrong
standard of review and arbitrarily admitted improper evidence.
2. Whether it is in the best interest of [his two daughters] that their father’s parental
rights be terminated.
3. Whether there is clear and convincing evidence that appellant failed to substantially
comply with the statement of responsibilities.
And the state defined the issues on appeal as follows:
1. Whether the juvenile court properly terminated [Mother’s] parental rights on two
separate abandonment grounds: engaging in only token visitation and failing to meet
the department’s reasonable efforts to help her provide a suitable home for her
children in the four months following her children’s removal.
2. Whether the juvenile court properly terminated [Mother’s] parental rights for her
failure to remedy persistent conditions that prevented her reunification with her
children at an early date.
3. Whether the juvenile court properly terminated both [Mother and Father’s] parental
rights when they did not substantially comply with the requirements of their
permanency plans.
4. Whether the juvenile court properly determined that termination of both [Mother and
Father’s] parental rights was in the children’s best interest.
III. Standard of Review
The standard of review as well as the constitutional and statutory overview of a termination
case have been discussed in a number of cases. The rules governing our review are well set out by
Judge (now Justice) Koch in In re M.J.B., 140 S.W.3d 643, 652-654 (Tenn. App. 2004):
8
Termination proceedings in Tennessee are governed by
statute. Parties who have standing to seek the termination of a
biological parent’s parental rights must prove two things. First, they
must prove the existence of at least one of the statutory grounds for
termination. Tenn. Code Ann. § 36-1-113(c)(1); In re D.L.B.,118
S.W.3d 360, 367 (Tenn. 2003); Jones v. Garrett, 92 S.W.3d at 838.
Second they must prove that terminating the parent’s parental rights
is in the child’s best interests. Tenn. Code Ann. § 36-1-113(c)(2)
(citations omitted).
No civil action carries with it graver consequences than a
petition to sever family ties irretrievably and forever. Tenn. Code
Ann. § 36-1-113(l)(1); M.L.B. v. S.L.J., 519 U.S. 102, 119, 117 S. Ct.
555, 565, 136 L. Ed. 2d 473 (1996)(citations omitted). Because the
stakes are so profoundly high, Tenn. Code Ann. § 36-1-113(c)(1)
requires persons seeking to terminate a biological parent’s parental
rights to prove the statutory grounds for termination by clear and
convincing evidence. This heightened burden of proof minimizes the
risk of erroneous decisions. In re C.W.W., 37 S.W.3d at 474; In re
M.W.A., Jr., 980 S.W.2d at 622. Evidence satisfying the clear and
convincing evidence standard establishes that the truth of the facts
asserted is highly probable (citations omitted), and eliminates any
serious or substantial doubt about the correctness of the conclusions
drawn from the evidence. In re Valentine, 79 S.W.3d 539, 546
(Tenn. 2002); In re C.D.B., 37 S.W.3d 925, 927 (Tenn. Ct. App.
2002). It produces in the fact-finder’s mind a firm belief or
conviction regarding the truth of the facts sought to be established.
In re A.D.A., 84 S.W.3d 592, 596 (Tenn. Ct. App. 2002); Ray v. Ray,
83 S.W.3d at 733; In re C.W.W., 37 S.W.3d at 474.
Because of the gravity of their consequences, proceedings to
terminate parental rights require individualized decision making. In
re Swanson, 2 S.W.3d at 188.
. . . .
Because of the heightened burden of proof required by Tenn.
Code Ann. § 36-1-113(c)(1), we must adapt Tenn. R. App. Pro.
13(d)’s customary standard of review for cases of this sort. First, we
must review the trial court’s specific findings of fact de novo in
accordance with Tenn. R. Civ. P. 13(d). Thus, each of the trial
court’s specific factual findings will be presumed to be correct unless
the evidence preponderates otherwise. Second, we must determine
9
whether the facts, either as found by the trial court or as supported by
the preponderance of the evidence of the evidence, clearly and
convincingly establish the elements required to terminate a biological
parent’s parental rights. (citations omitted).
In re M.J.B. at 652-654; See also In re Georgianna, 205 S.W.3d 508, 515-516 (Tenn. Ct. App.
2006).
IV. Discussion
A. Grounds for Termination of Mother’s Parental Rights
Substantial Noncompliance with Permanency Plan Obligations
A trial court may use as a ground for termination a finding that:
(2) There has been substantial noncompliance by the parent or
guardian with the statement of responsibilities in a permanency plan
or a plan of care pursuant to the provisions of title 37, chapter 2, part
4.
Tenn. Code Ann. § 36-1-113(g)(2). Additionally, DCS must prove and a trial court must first find
that the requirements of a permanency plan are “reasonably related to remedying the conditions
which necessitate foster care placement,” Id. at § 37-2-403(a)(2)(c) . The court must also find that
the parent’s noncompliance was substantial in light of the degree of noncompliance and the
importance of the particular requirement that has not been met. In re Valentine, 79 S.W.3d 539, 548-
549 (Tenn. 2002); State v. T.M.B.K., 197 S.W.3d 282, 293 (Tenn. Ct. App. 2006). Trivial, minor,
or technical deviations from a permanency plans’s requirements will not be deemed to amount to
substantial noncompliance. In re Valentine, 79 S.W.3d at 548.
In the case now before us the juvenile court, in concluding that Mother had “not substantially
complied with the responsibilities and requirements set out for her in the permanency plan,” made
the following findings:
While [Mother] has completed many of the tasks on the
Permanency Plans, she has not been able to demonstrate that she
has reached the ultimate goal of being able to appropriately
parent her children. It was discovered that [Mother] and [Husband]
had been involved in several serious domestic disputes and were
charged with assault, domestic assault, intimidation, false information
and contempt of court. Some of these charges have resulted in
convictions. (emphasis added).
The court’s written termination order further concludes that “[Mother] failed to comply with
the tasks in the 2004, 2005, 2006 and 2007 permanency plans, requirements which are reasonable
and related to remedying the conditions which necessitate[d] foster care placement.” The order,
10
however, makes no further mention of specifically how these requirements are reasonably related
to a remedying the conditions that brought about removal.7 Our de novo review of the record shows
that Mother’s permanency plan’s requirements are reasonably-related to the two stated goals of
family reunification and Mother being able to parent all three special needs children. And we also
find that DCS did in fact make reasonable efforts to assist Mother in reaching the goals, particularly
by providing parenting classes, RASAC and individual counseling and by supervising visits with the
children.8
What is also shown from the record, however, is that the juvenile court improperly based its
finding of substantial noncompliance upon the fact that DCS’s outcomes and goals were not reached
rather than Mother’s efforts to reach them. This Court has made clear that outcome achievement is
not the measure of compliance:
The foregoing evidence clearly indicates that Mother and
Father failed to achieve the “desired outcome[s]” of the permanency
plans, i.e., they failed to demonstrate the ability to recognize and meet
the child’s physical and emotional needs, and they failed to
demonstrate that they had the developmental and emotional capacity
to properly care for the child. However, Tenn. Code Ann. § 36-1-
113(g)(2) does not require substantial compliance with a permanency
plan’s “desired outcome[s],” rather it requires substantial compliance
with a plan’s statement of responsibilities, i.e., the actions required to
be taken by the parent or parents. Mother and Father obtained the
required parenting and psychological assessments [and complied with
other requirements] . . . . [W]e conclude that there is an absence of
evidence showing that Mother and Father failed to follow specific
recommendations of the assessments/evaluations or that they failed
to comply with other specific statements of responsibility.
Accordingly, we cannot say that there is clear and convincing
evidence of substantial noncompliance with the permanency plans.
Thus, we find that the evidence preponderates against the trial court’s
finding with respect to this ground for termination.
Tennessee Dept. Children’s Services v. P.M.T. et al., 2006 WL 2644373, at *8 (Tenn. Ct. App.
2006). See also In re J.H.S., 2007 WL 1341771, at *8 (Tenn. Ct. App. 2007) (Court reversed finding
7
“Because the trial court made no finding regarding the reasonableness of [the mother’s] responsibilities
under the permanency plans, our review of this issue is de novo.” In re Valentine, 79 S.W .3d 539, 547 (Tenn.
2002).
8
“While the Department’s reunification efforts need not be “herculean,” the Department must do more
than simply provide the parents with a list of services and send them on their way.” In re Giorgianna H., 205
S.W .3d 508, 519 (Tenn. Ct. App. 2006)(citing In re C.M.M., 2004 W L 438326, at *7 (Tenn. Ct. App. March 9,
2004). See Tenn. Code Ann. § 37-1-166 (b)(g) (DCS ‘s obligation to make reasonable efforts to reunite
the family).
11
of substantial noncompliance where “the only permanency plan requirement where Mother fell short
was her inability to consistently demonstrate proper parenting skills”). Thus, even if Mother did not
learn how to effectively parent the children, under P.M.T., this is not a dispositive factor in our
determination of termination based on substantial noncompliance.
Interestingly, the DCS case manager defined substantial noncompliance as “when a parent
is informed of the tasks on the permanency plan and they do not comply with those tasks . . . over
a certain period of time.” Regarding Mother’s permanency plan, the case manager also later
admitted that “[s]he’s complied with it.”
We conclude that the evidence preponderates against the juvenile court’s finding that there
was substantial noncompliance with the permanency plan by Mother. Accordingly, we reverse as
to this issue.
Abandonment by Willful Failure to Visit
A trial court may use as a ground for termination a finding that “abandonment by the parent
or guardian, as defined by [Tenn. Code Ann.] § 36-1-102, has occurred.” Tenn. Code Ann. § 36-1-
113(g)(1). “Abandonment” is defined at Tenn. Code Ann. § 36-1-102(1)(A)(i) as :
(i) For a period of four (4) consecutive months immediately preceding
the filing of a proceeding or pleading to terminate the parental rights
of the parent(s) or guardian(s) of the child who is the subject of the
petition for termination of parental rights or adoption, that the
parent(s) or guardian(s) . . . have willfully failed to visit . . .
And “ ‘willfully failed to visit’ means the willful failure, for a period of four (4) months to visit or
engage in more than token visitation.” Id. at § 36-1-102(1)(E).
The juvenile court found that Mother had willfully failed to visit her children or had make
only token visits, and it concluded that this was a ground for terminating Mother’s parental rights.
In so doing, the court stated in its written order:
The Court concludes that clear and convincing evidence
supports findings that [Mother] committed abandonment under § 36-
1-102(1)(A)(i). It is undisputed that [Mother] has abandoned the
12
children because she willfully has not visited or has made only token
visits in the four (4) months right before the filing of this Petition. In
the past three (3) months, [Mother] has not visited the children. The
last visit was on February 9, 2007. [Mother] was not in jail or
incapacitated in any way in the past four (4) months. [Mother] knew
that the children were in DCS custody because she has participated in
DCS staffings, court [proceedings] and had visited the children
regularly. DCS has tried to contact [Mother] to set up a visit by
offering to pay for transportation and a hotel room to Dickson,
Tennessee as she has moved to Illinois. Mother knew the
consequences of her failure to visit the children regularly because she
signed a statement verifying that she received an explanation of those
consequences on October 15, 2004, October 21, 2005, May 16, 2006,
and although she refused to sign the statement on January 25, 2007,
the consequences were explained to her on that date.
A review of the record shows that Mother’s visits, while less than perfectly regular, do show
that she made efforts to maintain a relationship with her children and have meaningful visits with
them. Even when unable to visit, Mother’s actions fall short of “willful” abandonment.
Mother visited the children on January 2, 2007, January 27, 2007, and February 9, 2007. The
foster mother testified that Mother also visited with the girls in late February or early March 2007.
Mother moved to be near family support in Illinois in late February 2007, which made visitations
difficult. Nonetheless, despite transportation and financial issues, Mother visited with the minor
children on July 27, 2007, March 25, 2008 and March 26, 2008. Mother scheduled a visitation for
the weekend of April 12, 2008, but the foster parents failed to deliver the girls for visitation.
Mother made these 2007 visits without assistance to and from Illinois. Even though the
caseworker knew that Mother did not have transportation and could not financially afford to travel
to Tennessee, the state only began to offer transportation and lodging to Mother after the petition for
termination was filed. Once help was offered, Mother’s visitations resumed. Furthermore, as the
case manager testified, Mother stayed in regular contact with the children by telephone and letters,
as was identified in the visitation section of the permanency plan.
13
A mother’s irregular and inconsistent visitation was at issue in In re Valentine, 79 S.W.3d
539 (Tenn. 2002), where the state alleged that such constituted “substantial noncompliance” with
the parenting plan. Id. at 549. The Valentine Court did not find paramount the fact that the parent
had a less than perfect visitation record but instead ruled this to be “partial compliance,” and not
grounds for termination. This same reasoning readily applies to a determination of abandonment.
This Court now similarly finds that Mother’s less than perfect visitation record is not proof
of abandonment by clear and convincing evidence. The evidence preponderates against the juvenile
court’s finding that Mother’s abandonment based on non-visitation constitutes grounds for
termination. Accordingly, we reverse as to this issue.
Abandonment by Failure to Provide Suitable Housing
Under Tenn. Code Ann. § 36-1-113(g)(1), a trial court may also use as a ground for
termination a finding that abandonment has occurred by the parent’s failure to provide a suitable
home:
(ii) The child has been removed from the home of the
parent(s) or guardian(s) as the result of a petition filed in the juvenile
court in which the child was found to be a dependent and neglected
child, as defined in § 37-1-102, and the child was placed in the
custody of the department or a licensed child-placing agency, that the
juvenile court found, or the court where the termination of parental
rights petition is filed finds, that the department or a licensed child-
placing agency made reasonable efforts to prevent removal of the
child or that the circumstances of the child’s situation prevented
reasonable efforts from being made prior to the child’s removal; and
for a period of four (4) months following the removal, the department
or agency has made reasonable efforts to assist the parent(s) or
guardian(s) to establish a suitable home for the child, but that the
parent(s) or guardian(s) have made no reasonable efforts to provide
a suitable home and have demonstrated lack of concern for the child
to such a degree that it appears unlikely that they will be able to
provide a suitable home for the child at an early date;
Tenn. Code Ann. § 36-1-102(1)(A)(ii).
In addition to “willful failure to visit,” the juvenile court concluded that Mother had also
abandoned her children by failing to provide a suitable home. The court explained its findings of
fact as to this additional ground for termination of Mother’s parental rights stating the following:
In the 42 months after the removal, the Department has made
reasonable efforts to assist [Mother] to establish a suitable home for
the children by providing services including counseling at the Rape
and Sexual Abuse Center (RASAC), individual and family counseling
to address the issues that arise from her children having been sexually
14
abused, discipline, communicating and caring for a sexually reactive
child, and proper supervision, and therapeutic visitation to assist
[Mother] in implementing some of the parenting skills she was
supposed to have learned.
[Mother] has made no reasonable efforts to provide a suitable
home. Instead [Mother] continues to ask the children to lie, recently
telling them that sometimes you have to lie. She and [Husband] have
been involved in several domestic disputes to which the police have
been called. They have received charges resulting from these
disputes. [Mother] is presently homeless.
[Mother’s] failure to make even minimal efforts to improve
her home and or personal condition demonstrates a lack of concern
for the children to such a degree that it appears unlikely that she will
be able to provide a suitable home for the children at an early date.
(emphasis added).
We agree with the juvenile court’s ultimate conclusion here, but we do acknowledge that
after removal of the children Mother earlier did make at least minimal efforts in an attempt to
provide a suitable home. For example, by December 2005, Mother had obtained employment and
leased a three bedroom house; however, before DCS could conduct a home visit, she left the property
after a dispute with the landlord.
Again in February 2007, according to Mother’s testimony on February 29, 2008, she moved
to Illinois to be near family and receive mental health treatment. She and Husband lived in her
grandmother’s three-bedroom house, and Husband, employed at a steel plant, earned a salary
sufficient to cover food, utilities and other household expenses. DCS did not conduct a home visit
of the Illinois residence either.
At the next and final trial date held on April 14, 2008, it was revealed that Mother was now
presently homeless. The case manager, while being questioned by the girls’ guardian ad litem,
testified as to Mother’s present home conditions:
GAL: Have you communicated with [Mother] recently regarding her
living situation?
CM: Yes.
GAL: When was that communication?
CM: Well, actually, I’ve talked to her several times. I know
initially she was living with her mother while the home, her
grandmother’s home, that she would be renting from her
parents was under rehab. So I knew that. She was supposed
to keep me updated on when they were moving into that
15
home. And then recently, she called me on March 9th, on
Tuesday - - I mean, February - - no. Just this past Tuesday,
April 9th, I’m sorry. And she had explained to me - - she left
a message on my cell phone stating that she was - - it was an
emergency. She was in crisis situation. I called her back and
she had stated that they’re back - - she and [Husband] are
back in Tennessee. And the crisis was that she was homeless
and needed a place.
GAL: When was that communication?
CM: April the 9th.
GAL: Of 2008?
CM: Yes.
GAL: Okay. And do you have any idea where she’s living right
now?
CM: Right now, she’s staying with a friend, or - - and then she had
a motel. We got her a motel for this weekend.
GAL: What other assistance did the Department give her to get her
here to court today?
CM: Today?
GAL: Yes.
CM: We put gas in her - - the vehicle on Friday to make sure she
had gas to get here today.
GAL: Okay. And is that something that the Department normally
does, or does it need to be requested before you all do that?
CM: Requested.
GAL: And who requested gas to get to court today?
CM: [Mother]. . .stated that - - she called me on Friday morning,
letting me know that she did not have gas to get to court
today, and I assisted her with putting gas in the car.
GAL: Do you know who the friend is that she’s living with?
CM: I do not.
GAL: Is it in Tennessee?
CM: Yes. In Dickson is where she had stated.
We believe that Mother’s past efforts cannot compensate for her present homelessness and
her continuing in a relationship with great potential for continued domestic violence. In a similar
case, In re JQW and LKW, 2008 WL 2894824, at *3 (Tenn. Ct. App. July 23, 2008), this Court
affirmed termination of parental rights, agreeing with the trial court that “although Mother initially
made some efforts to ameliorate the conditions leading to the children’s removal, Mother remained
unable to provide a suitable home . . . [n]ow the parents have no known home at all. The children
still do not have a place to live with the parents that is safe and suitable.”
16
Likewise, B.D., R.M.T., and V.F.T. do not have a safe and suitable place to live with their
Mother. This Court finds by clear and convincing evidence that Mother has failed to provide a
suitable home and that the evidence does not preponderate against the juvenile court’s findings. We
affirm as to this ground for terminating Mother’s parental rights.
Persistence of Conditions
A trial court may use as a ground for termination a finding that:
(3)(A) The child has been removed from the home of the parent or
guardian by order of the court for a period of six (6) months and;
(i) The conditions that led to the child’s removal or other conditions
that in all reasonable probability would cause the child to be
subjected to further abuse or neglect and that, therefore, prevent the
child’s safe return to the care of the parent(s) or guardian(s), still
persist;
(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 permanent home;
Tenn. Code Ann. § 36-1-113(g)(3)(A)(i-iii). In order to terminate parental rights based upon this
ground, the party seeking termination must prove the existence of each of these factors by clear and
convincing evidence. See In re Valentine, 79 S.W.3d 539, 550 (Tenn. 2002).
The juvenile court, in its written order, determined that the above statutory requirements for
this termination ground had been met. The court acknowledged that “DCS removed the children
from the home because there had been referrals made about B.D.’s sexually inappropriate behavior
with some children in the neighborhood” and with his sisters, and the children had been removed
for 42 months. The juvenile court also found that “it was later learned that Mother had instructed the
children to lie to DCS and the police about what had been going on.” The court then concluded:
. . . Mother at first denied any knowledge of B.D. being
sexually inappropriate with his sisters, but later admitted that she did
have first hand knowledge of this behavior. It was later learned that
Mother had instructed the children to lie to DCS and the police
about what had been going on. At the initial Child & Family Team
Meeting Mother said to B.D., “Look what happens when you tell the
truth.”
17
The conditions that led to the removal still persist: [Mother]
is still asking the children to lie. For instance, after [Mother] was
given unsupervised visits she was ordered not to let [Husband], her
then paramour and now husband, be at the visits. She did allow
[Husband] to attend the visits and asked [the girls] to lie about
that. [Mother] has had parenting classes, completed a course for
parents of sexually abused children at the Rape and Sexual Abuse
Center, and been through almost two (2) years of counseling and
therapeutic visitation through Kids 1st and she still sees no harm in
asking her children to lie. [Mother] told her children that “sometimes
you have to lie.” [Mother] and her new husband have been
consistently involved with law enforcement due to domestic
violence. Other conditions in the home exist that, in all
reasonable probability, would lead to further neglect or abuse of
the children.
There is little chance that those conditions will be
remedied soon so that the children can be returned safely to the
home because, for 42 months, DCS made the following reasonable
efforts to help [Mother] remedy them, to no avail: DCS set up
counseling for [Mother] at the Rape and Sexual Abuse Center
(RASAC), DCS set up individual and family counseling to address
the issues that arise from her children having been sexually abused,
discipline, communicating and caring for a sexually reactive child,
and proper supervision. There has also been a Safety Plan developed
for [Mother] if the children were to come home. DCS has also
provided [Mother] with therapeutic visitation services in order to
assist her in parenting her children. Even after all of the services
[Mother] recently promised the girls that they would be coming
home soon to live with her and her new husband. (emphasis
added).
The juvenile court further concluded, “Continuation of the parent/child relationship greatly
diminishes the children’s chances of being placed into a safe, stable and permanent home.”
In defining persistent conditions both DCS and the juvenile court relied heavily on statements
concerning [Mother] telling the children to lie. As argued in her brief, Mother explains that the
conclusion that she asked the children to lie was made by the investigator early in the case and was
not substantiated during the trial, nor were the allegations that Mother told the children to lie about
visiting with Husband. Mother explained at trial that the minor children did not visit with him, but
rather they may have seen Husband from a distance in a parked car when Mother went to his work
to get money.
Whether or not Mother lied and to what extent, if any, is a decision that this Court believes
18
was best made by the juvenile court, who, by observing first-hand Mother and the State’s witnesses,
was in a better position to determine credibility. Our review of the record shows that the evidence
does not preponderate against the finding of Mother’s continued lying as a persistent condition.
This Court, however, finds that an even more alarming condition persists: the violence
between Mother and Husband “which in all reasonable probability would cause the child to be
subjected to further abuse or neglect.” Tenn. Code Ann. § 36-1-113(g)(3)(A)(i). Clear and
convincing proof of this came from Mother’s direct examination by the state at trial:
I married [Husband] March 3 of ‘06. The first we got into an
argument - - and I didn’t know in the town of Dickson you couldn’t
argue in the town, so he got arrested for that. But it wasn’t by me
calling the cops or anything. The second time - - we had separated
‘cause all this, we just couldn’t deal with it, you know. I guess - - so
we started going our separate ways, and he went into drugs. And he
went to the police station, and he lied about me doing something to
him . . . before I knew it, I’m at work, and I get arrested for something
I was accused of doing that I had no - - I didn’t even do nothing to
him . . . .Well, he wasn’t in his right state of mind. I mean, he was on
drugs, and he cleared himself up. He’s not on drugs anymore, and - -
before we got married. And, you know, we put our differences to a
side and stayed together because I love him.
And during redirect, the state elicited the following testimony from Mother:
State: On the domestic violence on the times the police were called,
there was one time when you were hiding [Husband], correct?
State: The police came to your house looking for [Husband]. Do
you recall that?
Mother: I don’t remember.
State: You don’t remember that?
Mother: No.
State: Okay. Do you remember Husband filing a report that said
that you jumped on top of him and hit him with a vacuum
cleaner.
Mother: Yeah. That’s the part where he had went to - - went to the
police station and lied to them, ‘cause he wasn’t in his right
state of mind.
State: The - - and you say, there were just two times you were
arrested:
Mother: No, I was only arrested one time.
State: You were only arrested one time?
Mother: Yeah.
State: [Husband] was arrested how many times?
19
Mother: Once I recall. But the first time when they had came to
the house, I told them that he can - - that they said that I
wanted a restraining order against him. I’m like, “No, ‘cause
he’s my boyfriend. You know, there’s no need for that.”
State: So there was a restraining order?
Mother: Yeah.
State: And then he got arrested for being with you because he
violated that restraining order?
Mother: Yeah. And we - - I didn’t know about that.
While not the reason for the children’s removal from the home, this pattern of domestic
violence and possible drug use around the children would subject them to further abuse and neglect.
With Mother and Husband still together, as was the case at the April 14, 2008, trial, and with several
years together during which time they chose not to try to end this abusive behavior, this Court finds
“there is little likelihood that these conditions will be remedied at an early date so the child[ren] can
be returned . . . . “ Tenn. Code Ann. § 36-1-113(g)(3)(A)(ii). Furthermore, even if in her homeless
condition Mother had a house, it would be one of potential violence and abuse - certainly neither
stable nor safe. Thus, this Court finds by clear and convincing evidence that the continuation of the
relationship between Mother and her children “greatly diminishes the child’s chances of early
integration into a stable and permanent home.” Id. at § 36-1-113(g)(A)(iii).
The court further observed that mother is intellectually and emotionally ill-equipped to deal
with the miriad of problems facing these three children. She is unable to understand the special
needs and/or care needed by children who have been either sexually abused or a child who has been
an abuser. She would be unable to provide the care needed by these children. This observation not
only relates to the persistence of conditions grounds but also to the subsequent best interest analysis.
The evidence does not preponderate against the juvenile court’s findings of persistent
conditions as a ground for termination of Mother’s parental rights.
While we have reversed as to two of the four grounds, termination of Mother’s parental rights
is still affirmed, as the appellee has sustained two of the grounds as set forth above. In re C.W.W.,
37 S.W.3d 467, 473-474 (Tenn. Ct. App. 2000) (the existence of any one of the statutory bases will
support a termination of parental rights).
B. Grounds for Terminating Father’s Parental Rights
Substantial Noncompliance with Permanency Plan Obligations
In concluding that Father had not substantially complied with his permanency plan, the
juvenile court made the following findings:
Father has not completed any tasks on the Permanency Plans. Father
still has failed to show interest in dealing with his children’s sexual
20
abuse issues or shown much interest in their lives at all . . . DCS has
contracted with Kids 1st to provide therapeutic visitation to Father in
order to assist him with parenting beginning in September 2005.
Father has been uncooperative with DCS. He was not cooperative
during the Psychosexual Evaluation, he has not been responsive to the
counseling to address the sexual abuse of his children by [B.D]., he
has not had a parenting assessment . . . the reports from the Kids 1st
therapist who is supervising his visits with the children indicate that
Father does not possess many positive parenting skills.
The court’s written termination order further concludes that “[Father] failed to comply with
the tasks in the 2004, 2005, 2006 and 2007 Permanency Plans, requirements which are reasonable
and related to remedying the conditions which necessitate[d] foster care placement.” Our de novo
review of the record shows that Father’s permanency plan requirements are reasonably-related to the
two stated goals of family reunification and his being able to parent his two girls, who have special
needs resulting from the sexual abuse by their half-brother B.D.
We find, however, that Father’s requirements to obtain a psycho-sexual evaluation and
counseling are not reasonably-related to remedying the condition necessitating foster care placement,
nor are they relevant to our determination here. As noted, on two separate occasions the State
investigated allegations that Father had sexually abused B.D. and/or R.M.T. and/or V.F.T. and found
these allegations to be unsubstantiated. Thus, the permanency plans should not have required any
tasks relating to unfounded sexual abuse by Father. Our review here of this issue will not take into
consideration any lack of compliance by Father with these requirements.
We further find that DCS did in fact make reasonable efforts to assist Father in reaching his
goals, particularly by providing parenting classes, RASAC and individual counseling, and by
supervising visits with the children. DCS also provided $1,000 financial assistance to Father for rent
and utilities so he could afford a health insurance deductible in the same amount, so his insurance
would cover counseling and treatment costs.
Father, citing to Tennessee Dept. Children’s Services v. P.M.T., et al., 2006 WL 2644373,
at *8 (Tenn. Ct. App. 2006), raises as a separate issue on appeal that the trial court applied the wrong
standard of review in determining substantial noncompliance by Father’s failure to achieve desired
outcomes rather than completion of required tasks.
We agree with the points made in Father’s procedural argument for the reasons discussed at
length in considering Mother’s compliance. Without considering any “desired outcomes,” our de
novo review of the record nevertheless supports a finding of Father’s substantial noncompliance with
the responsibilities, tasks and/or actions required in the permanency plan.
While Father did comply with some requirements, he did not comply with the important
21
responsibility: “to show adequate parenting skills during visitation.”9 It is important to note that this
requirement is listed in the permanency plan under Section 7 “Visitation” as a responsibility - not
a desired outcome. At trial, Father’s therapeutic visitation provider testified that Father was not able
to understand the need to closely supervise these girls or how to set appropriate boundaries. Father
did not discipline, redirect or otherwise effectively parent the girls. She cited as an example that
Father repeatedly allowed youngest daughter V.R.T. to inappropriately touch him and sit in his lap
despite counseling on the need for boundaries.
Also significant is Father’s noncompliance with the actions required of Father concerning
Outcome #7 which states that he “will be able to show/demonstrate age appropriate discipline and
parenting skills.” These actions required Father to cooperate with the therapeutic provider and
follow the recommendations of the service provider. The provider of Father’s in-home counseling
on the effects of sexual abuse on children testified about his attempts to advise Father regarding how
to appropriately interact with his children. Father, however, admitted to the provider that he was
having difficulties and did not understand the effects of sexual abuse. And when another attempted
to provide counseling services to Father in April and May 2007, he refused to schedule time with
her. The record here is replete with evidence that the father’s attitude is inconsistent with the
recognition that very special care and skill is needed to parent children who have been victims of
sexual abuse.
While this Court does not determine Father’s compliance by whether or not outcomes were
achieved, this Court does appropriately determine Father’s compliance by whether or not Father did
the “actions needed to achieve desired outcome[s],” as clearly stated in the permanency plan. This
Court finds that he did not complete these actions. Therefore, by clear and convincing evidence this
Court finds that Father did not substantially comply with the requirements of the permanency plan.
The evidence does not preponderate against the trial court’s finding, and we affirm this ground for
termination of Father’s parental rights.
Other Issues Raised by Father
Father raises two additional procedural issues. First, Father argues that the juvenile court
erred by admitting into evidence the most recent permanency plans even though they had not been
ratified by the court. As this Court has previously recognized, a trial court’s failure to ratify
permanency plans within the time required by Tenn. Code Ann. § 37-2-403 does not make such
plans nullities. In the Matter of A.W., 114 S.W.3d 541, 546 (Tenn. Ct. App. 2003). The provisions
of Tenn. Code Ann. § 37-2-403 are directory rather than mandatory. Id. Moreover, the
responsibilities of Father had not materially changed on these permanency plans. Father testifies that
he was aware of the requirements in the permanency plans. While he disagreed that he needed anger
management classes, he agreed with the other requirements of the permanency plans. Accordingly,
9
This Court places great weight on this and other requirements concerning the safety and special needs of
the two girls. See In re Valentine, 79 S.W .3d at 548 (“the real worth and importance of noncompliance should be
measured by both the degree of noncompliance and the weight assigned to that requirement”).
22
the juvenile court did not err in admitting the January 25, 2007 permanency plan into evidence.
Second, Father asserts that the juvenile court erred in admitting the February 27, 2008,
lengthy letter from a foster care counselor to counsel for DCS as a business record exception to the
hearsay rule.
The totality of appellant’s argument in support of this assertion is that “it is inconceivable
that any judge could believe that [the letter]” was admissible. There was no citation to the Tennessee
Rules of Evidence or case law. The issue is waived. Failure of a party to cite authority constitutes
a waiver of the issue. See T.R.A.P. 27(a)(7); Newcomb v. Kohler, 222 S.W.3d 368, 400-401 (Tenn.
Ct. App. 2006).
C. Best Interests of the Children
Tenn. Code Ann. § 36-1-113(i) sets out a list of factors for the court to consider in determining
whether termination of parental rights would be in the best interest of the child:
(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 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 any criminal
23
activity in the home, or whether there is such use of alcohol or
controllable 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.
“The list is ‘not exhaustive,’and there is no requirement that every factor must appear . . . .” State
v. P.M.T., et al., 2006 WL 2644373, at *9 (citations omitted). And the best interest of the child is
to be determined from the perspective of the child rather than the parent. See White v. Moody, 171
S.W.3d 187, 194 (Tenn. Ct. App. 2004).These factors should be viewed from the perspective of the
best interests of the children, a view which may be somewhat different than in determination of
grounds for abandonment. As this Court recently reiterated in In re D.P.M, S.H., and Y.M., 2008
Westlaw 4693725 WL 4693725, at *11 (Tenn. Ct. App. 2008) :
Our courts have recognized that a determination of best interest is
controlled by different considerations from a determination of
grounds for termination. In the grounds inquiry, a parent’s
constitutional rights are given significant weight, and courts primarily
look at the conduct of that parent . . . once grounds have been
established, the best interests of the children become the paramount
focus of the trial court.
(citing In re Audrey S., 182 S.W.3d 838, 877 (Tenn. Ct. App. 2005).
The juvenile court below determined that it was in the best interests of the children to
terminate both Mother’s and Father’s parental rights, as stated in the written order:
[T]hey have not made changes in their conduct or circumstances that
would make it safe for the children to go home . . . Mother continues
to ask the girls to lie. Father has not been cooperative and has
demonstrated some disturbing parenting behaviors . . . . [T]hey have
not made lasting changes in their lifestyle or conduct after reasonable
efforts by the state to help . . . like financial assistance, parenting
assistance, counseling services for 42 months [and] they still have not
shown that they can appropriately parent these children.
Father
24
After reviewing the record, we agree with the juvenile court that a number of best interest
factors weighed against Father and that termination of Father’s parental rights is in the best interest
of R.M.T. and V.F.T. Father had failed to make lasting adjustments in his conditions despite
reasonable efforts from various providers. Father was provided with individual counseling and
therapeutic visitation to assist him in understanding how to parent the children. Father testified that
he understood that his daughters had special needs due to the sexual abuse. Yet, Father was not able
to demonstrate that he understood the signs and effects of sexual abuse or how to parent sexually
abused children.
Father’s participation in counseling was sporadic. He displayed a lack of understanding and
failure to make lasting adjustments to the children’s needs during his supervised visits. He did not
understand the need to closely supervise these girls or how to set appropriate boundaries. He had
not maintained regular visitation and did not have a meaningful parental relationship with his
children. See Tenn. Code Ann. § 36-1-113(i)(3) and (4). Although DCS attempted to accommodate
Father’s schedule, he would often be late or not show up for visitation. These girls did not appear
to have a strong connection to Father.
For all these reasons, the juvenile court properly found that termination of Father’s parental
rights was in the best interests of the children R.M.T. and V.R.T. Accordingly, we affirm this
finding and the termination of Father’s parental rights.
Mother
After reviewing the record, we agree with the juvenile court that a number of best interest
factors also weighed against Mother, and termination of Mother’s parental rights is in the best
interests of B.D., R.M.T. and V.F.T. Mother has failed to make lasting adjustments in her
conditions despite reasonable efforts from various providers. See Tenn. Code Ann. § 36-1-113(i)(1-
2). Mother was provided with individual counseling and therapeutic visitation to assist her in
understanding how to parent these children with special needs. Mother, however, was not able to
demonstrate any understanding of the children’s need for structure, boundaries and rules. Mother’s
inability to reach the desired outcomes of the permanency plan, while not used as a ground for
termination, is appropriately considered in our determination of the best interests of the children.
Mother lacks a suitable and safe home. See Tenn. Code Ann. § 36-1-113(i)(7). Mother
married an individual with whom she had a history of domestic disputes even though this could be
potentially harmful to her children. Finally, at the time of the final day of the trial, Mother was
homeless.
For all these reasons, the juvenile court also properly found that termination of Mother’s
parental rights was in the best interests of the children B.D., R.M.T. and V.R.T. Accordingly, we
also affirm this finding and the termination of Mother’s parental rights.
25
CONCLUSION
For the reasons set forth above we affirm the judgment of the juvenile court terminating the
parental rights of Father to children R.M.T. and V.F.T. Although we reverse two of the four grounds
for termination of Mother’s parental rights, we do furthermore affirm the judgment of the juvenile
court terminating her rights to children B.D., R.M.T. and V.R.T.
Costs are assessed equally to Mother and Father, for which execution may issue if necessary.
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SENIOR JUDGE WALTER C. KURTZ
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