In the Matter of L.F.B. and D.M.D. ( 2005 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs August 26, 2005
IN THE MATTER OF L.F.B. and D.M.D.
Appeal from the Juvenile court for Dickson County
No. 06-04-077-CC A. Andrew Jackson, Judge
No. M2005-00697-COA-R3-PT - Filed November 7, 2005
This is a mother’s appeal of the termination of her parental rights to her oldest son and daughter.
Because we find that there is clear and convincing evidence in the record to support the trial court’s
termination on three (3) alternative grounds and that termination is in the children’s best interest, we
affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed
PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which WILLIAM C. KOCH , JR., P.J.,
M.S., and FRANK G. CLEMENT , JR., J., joined.
Mitchell B. Dugan, Dickson, Tennessee, for the appellant, V.M.
Paul G. Summers, Attorney General and Reporter, Amy T. Master, Assistant Attorney General, for
the appellee, State of Tennessee, Department of Children’s Services.
OPINION
I. FACTS
The children subject to this appeal are a boy, L.F.B., born in August of 1991 and a girl,
D.M.D., born in April of 1998.1 The children had different fathers. The trial court terminated the
parental rights of their Mother and both fathers. Only the Mother appealed the termination.
1
W hile not subject to the trial court’s termination order, it is important to note that M other has a third, youngest
child, J. Mother’s rights to J. are not the subject of the trial court’s order since J. had not been taken into custody in
Tennessee. Apparently, J. has been with his Mother out-of-state, but at the time of trial was the subject of an
investigation in South Carolina.
The two children, L.F.B. and D.M.D., came into DCS custody on January 22, 2003, when
the Dickson police found the children with D.M.D.’s father walking on the highway after their car
had broken down. L.F.B. was age 11 and D.M.D. was age 4. The father told police he had taken the
children away from their Mother in Mississippi because of her crack cocaine habit. Since there was
an outstanding warrant in another state for the father, he was taken into police custody. At the time
the children were taken into custody, Mother, who lived in Mississippi, was approximately twenty-
nine (29) years old.
At that time, the Child Protective Services (“CPS”) Investigator, Ms. Tiffany Evans, learned
from the children that Mother had exposed them to her drug use and frequently left them alone.
Tennessee CPS Investigators contacted their Mississippi counterparts and learned that the children
were the subjects of an investigation in Mississippi arising from Mother allegedly exposing the
children to drugs and arising from alleged sexual abuse by a babysitter. There is no record that the
children were subject to any court orders in Mississippi. The authorities in Mississippi indicated that
it was difficult to resolve their investigation since they had problems locating Mother and her
children.2
DCS then filed a petition for protective custody. Ms. Evans contacted Mother by phone on
the night the children came into custody to explain why the children were in custody and that the
preliminary hearing was set for January 28, 2003. When Mother expressed concern that she did not
have transportation to Dickson from her home in Ocean Springs, Mississippi, Ms. Evans suggested
several resources including the Mississippi Department of Human Services and told Mother who to
contact to arrange to have counsel appointed. Although Ms. Evans and Mother spoke several times
before the preliminary hearing, Mother did not attend the hearing. At trial, Mother explained she
could not get to Tennessee for the preliminary hearing due to lack of transportation and since she had
to care for J., her youngest child. Mother also admitted, however, that she sent J. to his grandmother
during this time and that she was able to travel between Jackson, Mississippi, where she worked, and
Ocean Springs, Mississippi.
At the time the children were taken into custody, Mary Cunningham was assigned as their
case worker and remained their case worker throughout these proceedings. On February 18, 2003,
Mother attended the staffing for the children’s Permanency Plans. Mother did not visit the children
when she was in Dickson for the staffing, although she was given that opportunity. The plans for
L.F.B. and D.M.D. were basically identical and stated as their goal to either return both children to
Mother, adoption, or placement with a relative within one (1) year. The plans identified the
following tasks for Mother to accomplish in order to be reunited with her children:
1. Cooperate with the Mississippi and Tennessee investigations;
2. Attend and complete parenting classes;
2
The CPS Investigator later learned Mother had been indicted in Ohio years earlier for neglect of L.F.B. Her
son was taken into custody and lived with his great grandmother for a period of years. The record is not clear on how
long Mother lost custody of L.F.B., from 2 to 4 years. Ultimately, Mother regained custody.
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3. Arrange and attend supervised visits with her children;
4. Attend court proceedings and staffings;
5. Complete an alcohol and drug assessment and follow recommendations, including
treatment;
6. Submit to random drug screens;
7. Attend Alcoholics or Narcotics Anonymous;
8. Maintain and show proof of employment;
9. Submit to a home study; and
10. Participate in therapy.
Obviously, some of the requirements of the Parenting Plans targeted Mother’s use of drugs.
Admittedly, she started using crack when she was 18 years old. Mother’s counselor later reported
that Mother said the habit cost between Three Hundred Dollars ($300) and One-Thousand Dollars
($1,000) per day.3
At the February 2003 staffing, Mother refused to sign the Permanency Plan and at trial she
explained that her refusal was based upon advice of non-present counsel. While testifying at trial,
Mother acknowledged her participation in the staffing, that she received a copy of it, and that DCS
staff explained it to her, including the Criteria and Procedures for Termination of Parental Rights
included in the Parenting Plan, which explained, among other grounds, the definition of
abandonment.
At the time the children were taken into custody, Mother lived in Ocean Springs, Mississippi
and worked in Jackson, Mississippi. While living in Ocean Springs, Mother told the CPS
Investigator that she and her boyfriend were considering buying a house there. While the children
were allowed to call their Mother every Saturday, this contact ended after 3 or 4 months when
Mother’s telephone was disconnected. On April 7, 2003, Mother visited her children to celebrate
her daughter’s birthday. She would not see her children again for 14 months.4 Around June of 2003,
Mother left Ocean Springs, Mississippi, and moved to South Haven, Mississippi which is a suburb
of Memphis, Tennessee. At some point, Mother moved to Memphis. Her DCS case worker, Ms.
Cunningham, testified that when Mother would relocate, she would not always appraise DCS of her
whereabouts, sometimes for months, and even refused to disclose her location.
Approximately ten (10) months after the children were taken into custody, on October 22,
2003, the juvenile court held an adjudication hearing on DCS’s Petition for Temporary Custody.
Although Mother acknowledges that she received notice of the hearing, she did not attend. Her case
worker testified that she notified Mother about these proceedings and explained how Mother could
get an attorney. The trial court found the children were dependent and neglected and placed them
in the custody of DCS. The Adjudication Hearing Order was entered on December 3, 2003. At the
3
At trial, Mother said her counselor misunderstood her and said that this was the cost per week, not per day.
4
Mother acknowledged at the hearing that DCS did not hinder her visitation.
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time of this adjudicatory hearing, Mother had visited the children one time, called the case worker
four (4) times, and refused to disclose her address to the case worker. Mother later testified that she
was living in Memphis at the time of this hearing.
In November of 2003, the children were both placed in a foster home where they remained
at the time of trial. By all accounts, the children’s placement with their foster family has been
successful, resulting in a loving and supportive environment for the children. Their foster mother
is a DCS case worker. Their foster father testified that if given the opportunity, they would like to
adopt the children.
In December of 2003, Mother moved to Slidell, Louisiana where she enrolled in Remington
College to train to become a Pharmacist Technician. She dropped out of school, and in March of
2004 Mother moved to Santee, South Carolina.
The record reflects that from the time the Mother visited the children in April of 2003, until
the State petitioned to terminate parental rights in June of 2004, approximately 14 months, Mother
had no contact with the children by phone or visitation.5
The children’s case worker testified that during the period between January of 2003, when
the children came into custody, and June of 2004, when DCS petitioned to terminate parental rights,
Mother did not notify DCS when she moved or her whereabouts. Ms. Cunningham testified that
Mother would not disclose her location, go months without calling, and then when she would call,
Mother would refuse to tell Ms. Cunningham where she could be reached. Ms. Cunningham was
able to get a general idea of her whereabouts only from caller identification. For example, Ms.
Cunningham did not hear from Mother in May, June or July of 2003. Mother called in August of
2003, refused to tell Ms. Cunningham where she was, and then did not contact Ms. Cunningham
again until November of 2003. When Mother called in November of 2003, Ms. Cunningham again
explained to Mother the Parenting Plan and offered to mail her another copy. Again, Mother refused
to disclose her location. After her November, 2003 call, Ms. Cunningham then did not hear from
Mother again until March of 2004. In April of 2004, Mother called Ms. Cunningham a few times
and scheduled a visit of the children in May of 2004. Mother did not appear or call to cancel the
May 2004 visit.
In June of 2004, DCS petitioned the court to terminate the parental rights of Mother and both
6
fathers for abandonment under Tenn. Code Ann. § 36-1-113(g)(1), substantial failure to comply
with the Permanency Plan under Tenn. Code Ann. § 36-1-113(g)(2), and persistence of conditions
5
At some point the record reflects that Mother sent letters to the children that Ms. Cunningham intercepted since
she believed the letters would upset the children. Mother testified she sent 15 to 20 letters. W hen these letters were sent
is not in the record. Ms. Cunningham testified that she later gave the letters to the children.
6
On October 4, 2004, the court entered an order terminating the parental rights of the children’s fathers. That
order was not appealed.
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that prevented the children’s return to the home after six (6) months in foster care under Tenn. Code
Ann. §36-1-113(g)(3).
Between the time the State filed its petition in June of 2004 and the hearing in February of
2005, Mother visited her children six (6) times and cancelled another six (6) scheduled visits.
The hearing on the petition to terminate Mother’s parental rights was held on February 7,
2005. Mother was present and represented by counsel. The court heard testimony from 2 CPS
investigators, the case worker, Mother, the children’s foster father, 13-year-old L.F.B. and L.F.B.’s
counselor.
On March 9, 2005, the trial court entered an order terminating Mother’s parental rights after
finding clear and convincing evidence of: (a) abandonment under Tenn. Code Ann. § 36-1-113(g)(1);
(b) persistence of conditions under Tenn. Code Ann. § 36-1-113(g)(3); and (c) substantial failure to
follow the parenting plan under Tenn. Code Ann. § 36-1-113(g)(2). Further, the court found there
was clear and convincing evidence that termination of Mother’s parental rights was in the children’s
best interest pursuant to Tenn. Code Ann. § 36-1-113(i).
Mother appeals claiming that Tennessee was without subject matter jurisdiction to entertain
the termination of her parental rights petition since Tennessee was not the children’s home state.
Alternatively, if jurisdiction exists, Mother argues there was not clear and convincing evidence in
the record to support the trial court’s decision to terminate.
II. STANDARD FOR TERMINATION OF PARENTAL RIGHTS
A court may terminate a person’s parental rights only if (1) the existence of at least one
statutory ground is proved by clear and convincing evidence and (2) it is shown, also by clear and
convincing evidence, that termination of the parent’s rights is in the best interest of the child. Tenn.
Code Ann. § 36-6-113(c); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). The higher evidentiary
standard, as well as procedural safeguards, exist to prevent unwarranted government interference
with a parent’s fundamental and constitutionally protected right to the care and custody of his or her
children.7 Because of the severity of the consequences of a decision to terminate parental rights,
such proceedings must insure protection of that right.
Our legislature has identified those situations in which the state’s interest in the welfare of
a child justifies interference with a parent’s constitutional rights by setting forth grounds on which
termination proceedings can be brought. Tenn. Code Ann. § 36-1-113(g). The statutes on
7
A parent has a fundamental right to the care, custody and control of his or her child. Stanley v. Illinois, 405
U.S. 645, 651, 92 S. Ct. 1208, 1212-13 (1972); Nash-Putnam v. McCloud, 921 S.W .2d 170, 174-75 (Tenn.1996); In
Re Adoption of a Female Child, 896 S.W .2d 546, 547 (Tenn.1995); Nale v. Robertson, 871 S.W .2d 674, 678
(Tenn.1994). This right is a fundamental but not absolute right, and the state may interfere with parental rights if there
is a compelling state interest in protecting the welfare of the child. Santosky v. Kramer, 455 U.S. 745, 747, 102 S. Ct.
1388, 1391 (1982); Nash-Putnam, 921 S.W .2d at 174-75.
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termination of parental rights provide the only authority for a court to terminate a parent’s rights.
Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004). Thus, parental rights may be terminated only
where a statutorily defined ground exists. Tenn. Code Ann. § 36-1-113(c)(1); Jones v. Garrett, 92
S.W.3d 835, 838 (Tenn. 2002); In re M.W.A., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998). To
support the termination of parental rights, only one ground need be proved, so long as it is proved
by clear and convincing evidence. In the Matter of D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003).
The requisite higher standard of proof applicable to both grounds and best interest is one of
the safeguards necessitated by the severity of the interference with the parent’s fundamental rights.
In order to be clear and convincing, evidence must eliminate any serious or substantial doubt about
the correctness of the conclusions to be drawn from the evidence. In re Valentine, 79 S.W.3d at 546;
Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992). Such evidence should produce
in the fact-finder’s mind a firm belief or conviction as to the truth of the allegations sought to be
established. In re A.D.A., 84 S.W.3d 592, 596 (Tenn. Ct. App. 2002); In re C. W. W., 37 S.W.3d
467, 474 (Tenn. Ct. App. 2000). In contrast to the preponderance of the evidence standard, clear and
convincing evidence should demonstrate that the truth of the facts asserted is “highly probable” as
opposed to merely “more probable” than not. In re C. W. W., 37 S.W.3d at 474; see also Estate of
Acuff v. O’Linger, 56 S.W.3d 527, 537 (Tenn. Ct. App. 2001).
Due to the grave consequences that accompany such decisions, courts must apply
individualized decision-making to a termination decision. In re Swanson, 2 S.W.3d 180, 188 (Tenn.
1999). Due process requires the application of stringent standards to insure protection of the
fundamental rights at stake. Because of the constitutional implications, gravity of consequences,
higher standard of proof, and required individualized decision making, our legislature has explicitly
required that courts making termination of parental rights decisions “enter an order which makes
specific findings of fact and conclusions of law.” Tenn. Code Ann. § 36-1-113(k). In this court’s
review, we must determine de novo whether DCS sustained its burden to prove its case by clear and
convincing evidence. In re Valentine, 79 S.W.3d at 546.
III. JURISDICTION
Since the jurisdictional error alleged by Mother may be dispositive of her appeal, we address
it first. Mother challenges whether Tennessee is the children’s home state for purposes of
establishing subject matter jurisdiction under the Uniform Child Custody Jurisdiction and
Enforcement Act, Tenn. Code Ann. § 36-6-201 et seq. (“UCCJEA”). A state is a child’s home state
if a child has “lived with a parent or a person acting as a parent for at least six (6) consecutive
months immediately before commencement of a child custody proceeding.” Tenn. Code Ann. § 36-
6-205(7). “Child custody proceeding” is defined to include “termination of a parental rights.” Tenn.
Code Ann. § 36-6-205(4). Since the children had been in the custody of DCS, and had lived with
foster parents, more than six (6) months before DCS filed its petition to terminate parental rights,
Tennessee was the children’s home state in June of 2004 when the petition was filed.
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Although termination of parental rights proceeding “is a new and separate proceeding from
a dependent neglect proceeding,” In re M.J.B., 140 S.W.3d 643, 651 (Tenn. Ct. App. 2004), Mother
appears to challenge the initial taking into custody by DCS, asserting that Tennessee was not then
the home state and the children should have been returned to Mississippi. Although the record
before us does not include the order of January 2003, the trial court’s later dependency and neglect
order recounts the situation at the time the children first came into DCS custody.
The children were found walking on the interstate with D.D.’s father who, it turned out, had
an outstanding warrant against him in Indiana and was taken into custody. Mother was called in
Mississippi, but did not come to Tennessee until three weeks later, and then for a visit. At the time,
there was an open investigation of the family ongoing in Mississippi. As the court found, the
children were dependent and neglected because they were without a proper guardian. Consequently,
the trial court had jurisdiction when the children first came into DCS custody under Tenn. Code Ann.
§ 36-6-219(a) and (b):
(a) A court of this state has temporary emergency jurisdiction if the child is present
in this state and the child has been abandoned or it is necessary in an emergency to
protect the child because the child, or a sibling or parent of the child, is subjected to
or threatened with mistreatment or abuse.
(b) If there is no previous child custody determination that is entitled to be enforced
under this part and a child custody proceeding has not been commenced in a court of
a state having jurisdiction under §§ 36-6-216–36-6-218, a child-custody
determination made under this section remains in effect until an order is obtained
from a court of a state having jurisdiction under §§ 36-6-216–36-6-218. If a child
custody proceeding has not been or is not commenced in a court of a state having
jurisdiction under §§ 36-6-216–36-6-218, a child custody determination made under
this section becomes a final determination, if it so provides and this state becomes
the home state of the child.
When the juvenile court was presented with the children in January of 2003, based on the
proof introduced at the hearing, it clearly had emergency jurisdiction under Tenn. Code Ann. § 36-6-
219(a) to take the children into custody. The children were abandoned in Tennessee.8 Their adult
guardian was in police custody and their Mother did not attempt to appear or exercise custody.
Under subsection (b), there is no indication in the record that there existed a current child custody
determination from any other state. DCS contacted its Mississippi counterpart. Furthermore, no
proceedings were initiated in any other state with even purported jurisdiction. Therefore, pursuant
to Tenn. Code Ann. § 36-6-219(b), since Tennessee assumed emergency jurisdiction and no action
8
Mother tries to argue that the children were in Tennessee due to kidnapping by D.D.’s father. The trial court
did not find this to be the case, and Mother admittedly filed no charges with the authorities about any kidnapping. In
any event, DCS, rather than the father, obtained custody of the children and contacted Mother as well as officials in
Mississippi.
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was taken in another state with even possible jurisdiction, then Tennessee was the children’s home
state for purposes of jurisdiction to entertain the petition of DCS to terminate parental rights.9
IV. ABANDONMENT
Among the grounds alleged by DCS in its petition, and found by the trial court to have been
shown, was abandonment, as defined by a specific subsection of the statute defining that term:
(i) For a period of four (4) consecutive months immediately preceding the fling of a
proceeding or pleading to terminate the parental rights of the parent(s) . . that the
parent(s) . . . either have willfully failed to visit or have willfully failed to support
or have willfully failed to make reasonable payments toward the support of the child;
(ii) The child has been removed from the home of the parent(s) as a result of a
petition filed in the juvenile court in which the child was found to be a dependent and
neglected child . . . 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 a 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) (i) and (ii).
The trial court found abandonment under Tenn. Code Ann. § 36-1-102(1)(A)(i), willful
failure to visit.10 The record is clear that Mother did not visit or otherwise contact her children in
the four (4) month period (February - May) before DCS filed to terminate in June of 2004. In order
to constitute abandonment under Tenn. Code Ann. § 36-1-102(1)(A)(i), however, Mother’s failure
to visit must be willful, i.e., that she knew of the duty, that she had the ability, and voluntarily chose
not to visit. See In re M.J.B. and M.W.S., Jr., 140 S.W.3d 643, 654 (Tenn. Ct. App. 2004). There
is clear and convincing evidence in the record to support the trial court’s finding of willfulness.
First, the parenting plan clearly described both the duty and consequences. It is important to note
that not only did Mother not visit the children, she would not even disclose her location to their case
worker. During this four (4) month period, in March of 2004, Mother moved from Louisiana to
9
There is no dispute that the juvenile court has authority to terminate rights assuming that Tennessee has subject
matter jurisdiction.
10
The trial court also found abandonment based on failure to support. The evidence is ambiguous regarding
whether M other understood she had this duty since the Parenting Plans were silent on this issue and does not clearly
establish M other’s ability to provide support. Since abandonment is clearly present based on failure to visit, we find it
unnecessary to discuss Mother’s failure to support. The trial court also found abandonment under Tenn. Code Ann. §
36-1-102(1)(A)(ii) but we do not need to consider that basis since the grounds of abandonment has otherwise been
proven under Tenn. Code Ann. § 36-1-102(1)(A)(i).
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Santee, South Carolina so she was clearly mobile. Most importantly, when asked why she did not
move to Tennessee to be nearer her children, she replied that she wanted a fresh start, “just wanted
to go somewhere else.” See In re D.M.S., G.H.S. and T.M.S., No. M2004-02584-COA-R3-PT, 2005
WL 1887526, at *9-10 (Tenn. Ct. App. August 9, 2005) (No Tenn. R. App. P. 11 application filed)
(finding decision by mother to live 500 miles away from children constituted willfulness for
purposes of abandonment). Under these circumstances, we agree with the trial court’s finding of
willfulness in her failure to visit under Tenn. Code Ann. § 36-1-102(1)(A)(i).
V. FAILURE TO COMPLY WITH PERMANENCY PLAN
The standards for reviewing termination of parental rights based on substantial failure to
comply with a permanency plan under Tenn. Code Ann. § 36-1-113(g)(2) have been discussed by
the Tennessee Supreme Court in In re Valentine, 79 S.W.3d 539 (Tenn. 2002). Prior to terminating
a parent’s rights on this ground, the trial court must find that the requirements of the permanency
plan that the parent allegedly did not satisfy are “reasonable and are related to remedying the
conditions which necessitate foster care placement.” Id. at 547 (quoting Tenn. Code Ann. § 37-2-
403(a)(2)(C)). If the trial court fails to make this finding, this court must review the trial court’s
decision de novo without a presumption of correctness. In re Valentine, 79 S.W.3d at 547.
Determining whether substantial noncompliance exists is a question of law that must also be
reviewed without a presumption of correctness. Id. at 548.
The trial court approved both Parenting Plans on February 26, 2003, finding them to be
reasonable. Mother has never disputed the reasonableness of the plans at the staffing, at trial or on
appeal. Upon review of the plans, we likewise find they are reasonable.
In order for noncompliance to justify the termination of parental rights, it must be
“substantial.” In other words, mere technical noncompliance alone is not sufficient to justify the
termination of parental rights. Id. at 548. Noncompliance with requirements in a permanency plan
that are neither reasonable nor related to remedying the conditions that led to the removal of the child
from the parent’s custody is not relevant for purposes of Tenn. Code Ann. § 36-1-113(g)(2). In re
Valentine, 79 S.W.3d at 548-49.
There is clear and convincing evidence that Mother failed to substantially comply with
virtually all aspects of the children’s Permanency Plans. Mother failed to cooperate with DCS in
may ways, most significantly her unwillingness to disclose her various residential locations. By her
own admission, she did not take parenting classes. As discussed previously, she did not stay in
contact with her children. She did not attend AA or NA meetings. While it appears she is now
seeing a counselor in Santee, South Carolina, other than self-reporting types of reviews, she has not
undertaken an A&D Assessment. Mother has not submitted to a home study. Furthermore, she has
never submitted to random drug tests. The Parenting Plan required proof of employment that Mother
has not offered. While Mother testified at the hearing that she had recently remarried, established
a home and had a job, the trial court did not find her testimony credible. The inconsistencies and
inaccuracies in Mother’s testimony are apparent. Other than starting to see a counselor in July of
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2004 and appearing at the termination hearing, Mother does not appear to have even attempted to
comply with the plans. Therefore, the trial court had ample grounds to find Mother failed to
substantially comply with the parenting plan.
VI. PERSISTENCE OF CONDITIONS
In the present case, the trial court terminated Mother’s parental rights pursuant to the
provisions of Tenn. Code Ann. § 36-1-113(g)(3)(A). This statute lists as one of the grounds for termination:
(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,
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.
These grounds must be interpreted and applied in accordance with the express legislative
intent of our statutory system of child removal, foster care, and adoption. One of the stated purposes
of these statutes is “to protect [children] from needless prolonged placement in foster care and the
uncertainty it provides, and to provide them a reasonable assurance that, if an early return to the care
of their parents is not possible, they will be placed in a permanent home at an early date.” Tenn.
Code Ann. § 37-2-401(a). Our courts have recognized the significance of permanency as the goal
of decisions involving future placement of children and termination of parental rights. See, e.g.,
State Dep't of Human Servs.v. Smith, 785 S.W.2d 336, 338 (Tenn.1990).
As required for the application of the statute, the children have been in custody more than
six (6) months. The immediate cause for the children coming into DCS custody was their being
without a guardian when D.D.’s father was taken into custody. The permanency plans make it clear
the underlying condition that made it unsafe for the children to be returned to Mother’s home was
her drug use. As the statute makes clear, the “conditions” likely to lead to future neglect and that
prevent safe return of the children may be the conditions leading to removal or “other conditions.”
Review of the record discloses that much of Mother’s neglect of the children stems from her
use of crack cocaine. She began using crack at age 18 and told her counselor that she had spent $300
to $1,000 per day (or per week) to support her habit. While she testified that she had stopped using,
there is no reason to find her testimony credible. While she testified at trial she stopped using crack
in 2002, there have been no regular random drug screens. The report she introduced from her
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counselor disputes Mother’s assertion that she quit in 2002 and states that Mother told the counselor
she stopped using cocaine in early 2004. However, in September of 2004, when Mother made an
appearance in court, she tested positive for cocaine. At the hearing, her son testified in detail about
his Mother’s drug use and its effects. Sadly, it does not appear that these conditions will be remedied
and continuation of the parent and child relationship greatly diminishes these children’s chances of
a stable, safe and permanent home. Based on the foregoing, this is clear and convincing evidence
to support the trial court’s termination of her rights for persistent conditions under Tenn. Code Ann.
§ 36-1-113(g)(3).
VII. REASONABLE EFFORTS
While not explicitly raised by Mother on appeal, she argues her failures were not her fault
and implies that DCS did not make reasonable efforts to reunite Mother and her children.
Reasonable effort has been defined by the General Assembly to mean “the exercise of reasonable
care and diligence by DCS to provide services related to meeting the needs of the child and family.”
Tenn. Code Ann. § 37-1-116(g)(1). One factor to consider is the parent’s efforts to remedy the
situation so that reunification is possible. In re J.L.E., 2005 W.L. 1541862 at *13; In re C.M.M.,
2004 WL 438326 at *7.
The children’s DCS case worker, Mary Cunningham, kept thorough records of her contacts
with Mother. Ms. Cunningham readily acknowledged that DCS had not provided certain types of
services to Mother. DCS’s failure to assist Mother did not arise from unwillingness or neglect of
DCS. DCS was not able to help Mother because she moved frequently and would go months
without letting DCS know her location. Sometimes Mother would call Ms. Cunningham and flatly
refuse to tell her where she was. It was only by backtracking through caller ID was Ms. Cunningham
able to determine what state and city Mother was located. According to Ms. Cunningham, it is not
possible to provide these types of services to someone out-of-state who moves frequently and refuses
to disclose their location. We agree. The trial court noted its belief that Mother was reluctant to
disclose her location out of concern that if she did so, then she might lose custody of her youngest
son, J. Her counselor noted this was the reason Mother was reluctant to seek help. In effect, for
whatever reason, Mother was avoiding DCS. The effort of DCS must be reasonable and we agree
with the trial court that there is clear and convincing evidence that DCS’s efforts were reasonable
under these circumstances.
VIII. BEST INTERESTS OF CHILDREN
Finally, in order to terminate parental rights, a trial court must find it is in the child’s best
interest to do so. Tenn. Code Ann. § 36-1-113(c)(2). In determining whether termination of parental
rights is in a child's best interest, the lower court must consider the following factors:
(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). This list is not exhaustive, and the statute does not require the court
to find the existence of every factor before concluding that termination is in a child’s best interest.
Here, Mother has had no contact with her children for months. Only after DCS filed its
petition to terminate in June of 2004, did mother begin to visit the children and then she had only
six (6) visits before the hearing date of February 2005. During this period Mother also cancelled six
(6) visits. As late as September of 2004, Mother still tested positive for cocaine. It is also clear that
Mother has not taken the necessary steps to make an adjustment so that the children could safely
return to her custody. Instead, she let them remain in foster care with little or no contact from her
while she moved around. The children have been with their foster parents since November of 2003.
By all accounts, the children are doing well with their foster parents who want to adopt them. We
believe that the record contains clear and convincing evidence that termination of Mother’s parental
rights is in the children’s best interest.
For the reasons set forth herein, we affirm the decision of the trial court in terminating
Mother’s parental rights. Costs of this appeal are taxed to Mother, for which execution may issue
if necessary.
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PATRICIA J. COTTRELL, JUDGE
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