Tennessee Department of Human Services v. Riley , 1984 Tenn. App. LEXIS 3446 ( 1984 )

CRAWFORD, Judge.

Tommy Lee and Peggy Sue Riley (hereinafter the Rileys) appeal from the judgment of the Circuit Court of Obion County which terminated their parental rights to their two minor children Peggy Lee, born April 26,1974 and Charles, born January 1,1977. The Tennessee Department of Human Services (hereinafter TDHS) initiated this action by a petition filed in the Juvenile Court of Obion County which entered an order terminating the Rileys’ parental rights. On appeal to the Circuit Court the case was heard de novo, resulting in a judgment terminating the parental rights of the Ri-leys.

The court terminated the Riley’s parental rights pursuant to Tenn.Code Ann. § 37-246(d)(1) (1977), the applicable statute of termination¹, which provided in pertinent part:

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(d) After hearing evidence on a termination petition, the court may terminate parental rights if it finds on the basis of clear and convincing evidence that termination is in the child’s best interest and that ... the following conditions exist: (1) The child has been removed from the custody of the parent by the court for at least one (1) year and the court finds that:

(A)The conditions which led to the removal still persist:

(B) There is little likelihood that these conditions will be remedied at any early date so that the child can be returned to the parent in the near future; and

(C) The continuation of the legal parent and child relationship greatly diminishes the child’s chances of early integration into a stable and permanent home.

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Thus, in order to terminate parental rights under subparagraph (1) of Section 37-246(d), the court must find five elements: (1) The termination must be in the best interest of the children. § 37-246(d); (2) The children must have been removed from the custody of the parent by the court for at least one year. § 37-246(d)(l); (3) The conditions which led to the removal must still exist. § 37-246(d)(l)(A); (4) There must be little chance that these conditions will be remedied so that the children can be returned to the parent at an early date. § 37 — 246(d)(1)(B); and (5) The continuation of the parent-child relationship must greatly diminish the children’s opportunities for early integration into a stable and permanent home. § 37 — 246(d)(1)(C). Each requirement necessary for a termination under this subparagraph must be found by clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). The judgment of the trial court recited that the findings of that court were based on clear and convincing evidence and specifically found the existence of the five elements set out above.

The Rileys present the following issues for review:

1. Whether TDHS followed the foster care review procedures?

2. Whether the visitation arrangements were conducive to achieving the goal of reuniting the family?

3. Whether TDHS provided rehabilitative services to help the Rileys after the removal of their children.

Prior to addressing these specific issues, we turn to an examination of the record. We shall outline the judicial and administrative procedures followed and summarize each witness’ testimony since this evidence provides a background for understanding our disposition of this case.

The record indicates that the Rileys’ two minor children, then ages 5 and 2, were removed from their natural parents in June, 1979. On July 27, 1979, the Obion County Juvenile Court found the children “dependent and neglected.” Pursuant to statute, TDHS filed a Foster Care Plan with the court on August 28,1979, and that report was approved by the court on March 6, 1980. Subsequent TDHS reports were timely filed and approved and a guardian ad litem was appointed for the children in September, 1981. These actions occurred before an order to permanently terminate the Rileys’ rights was filed on December 8, 1982.

The children were placed with seven different foster families before they went to live in Blakeman’s home in August, 1982. That home has been approved for adoption should the Riley children, who have continued to live with the Blakemans, be available.

At the Circuit Court trial, the first witness was Ruth Carlisle who, as a TDHS caseworker, had worked with the Rileys since 1977. She was the TDHS representative when it initiated these proceedings in June, 1979.

Mrs. Carlisle testified to the living conditions in which the Rileys lived at the time the children were removed. She described the house as being built from junkyard parts and sparsely furnished. She testified that it was littered with dirty clothes and bed linens, filth and waste food, and dirty pots and pans. The only running water in the house was cold water available at the kitchen sink.

Later, Mrs. Carlisle described the home in which Mr. and Mrs. Riley currently live. It is a more substantially built four rooms, although it has cracks large enough to enable one to see through to the outside. There is still no running water. Mrs. Car-lisle testified that on one trip the only food she saw in the house was a bag of potatoes and a half a bottle of Coke. Significantly, as to whether conditions had improved, the record reflects the following question to and response of Mrs. Carlisle:

Q. Have you noticed any improvements in the living conditions enough that the children could be returned ... ?

A. No sir.

During Mrs. Carlisle’s testimony, she outlined programs the TDHS had provided the Rileys from 1977 until the children’s removal in 1979. She noted that a state employed housekeeper had made weekly visits to the Rileys’ home for counseling, that the children had been placed in day care, and that the department had worked to provide the family with all available government subsidies.

Contrasted with the above programs provided the Rileys prior to their children’s removal, Mrs. Carlisle reported that since the children had become wards of the state, TDHS had continued to provide counseling; however, she admitted on cross examination that this service was limited to the times she could catch the Rileys at home. In addition, she reported that TDHS had arranged visits and provided transportation in order for the Rileys to see their children. On cross-examination, Mrs. Carlisle conceded that Mrs. Riley had made numerous phone calls inquiring about her children and requesting visits. The caseworker testified that visits were arranged whenever possible.

The second witness, a psychologist, testified that he had tested Mr. Riley and found his IQ to be 72 on an individually administered test. According to the psychologist’s further testimony, Mr. Riley’s IQ range enabled him tó do unskilled work and possibly, with training, to perform lower level skilled tasks.

The next witness, another psychologist, testified that she had given Mrs. Riley IQ tests. These tests had determined that Mrs. Riley’s IQ was 46, which in the psychologist’s opinion was the equivolent age of a 7 year old. The testimony continued:

Q. Can you identify some of the capabilities a person with this age would have?

A. Well, they would be able to dress themselves, feed themselves, do simple household chores. A seven year old, you know, might be able to cook some simple foods, but probably couldn’t read a recipe to follow it, you know, to the “t”. They could do the basic self-help skills.

Q. What about limitations; are there certain limitations attributable to moderate mental retardation?

A. Usually, well, not usually, but nearly all the time, these people function on a very concrete level. They are able to deal with concrete things such as I said simple chores, but when it comes to making judgments such as legal, moral, and those kinds of things, they would not be able to think abstractly enough to do these sorts of things. They would really need supervision in caring for themselves.

Q. Even in the daily running of a household?

A. I would not want to leave a seven year old child in a household by themselves. Basically, that’s what you can sort of relate it to.

Q. I guess the answer of this question is obvious from what you just stated, but would she be able to perform the duties of parenting and supervision and the general care of children?

A. Well, my test didn’t really test that, but I would say that a person that is functioning at this level, as I said, would need supervision themselves in taking care of their daily lives, and I would, therefore, think that it would be extremely difficult for them to care for children and care for them adequately.

Q. Would her judgment be the same as that of a seven year old, or does your test measure that?

A. Well, one of the subtests is called verbal comprehension, and it measures social judgment and logical reasoning, and she scored in the moderate range on that subtest. So, I would say that her logical reasoning and judgment would be impaired, also.

The fourth trial witness, a cook for the day care center the Riley children attended before they were taken from the Rileys’ home, stated that the children were “poorly dressed” and not clean. Following that testimony, Peggy Lee’s day care teacher testified that Peggy Lee “was unkept. She was not clean.”

The TDHS homemaker, Mrs. Spurgeon, in her testimony recounted her contacts with the Rileys. When asked what she had hoped to accomplish on her weekly visits to the Riley home from 1977 until 1979, she stated that she wanted to help Mrs. Riley learn homemaking skills, to take the children for appointments, and to be a family friend. She stated: “[t]he children were very outgoing, smiling, happy, but they were dirty. Food was not — There was bologna, soup and things of that nature. No really well prepared meals were given to them. The dirt was really the worst ... [The house] was not fit for humans to live in.” Mrs. Spurgeon stated further that all of her efforts to help Mrs. Riley were in vain because she had difficulty remembering what she had learned on the previous visit. Mrs. Spurgeon testified as to the following specific instances: she had seen Charles playing in chicken manure; she had observed Mr. Riley’s mother, who lived adjacent to her son and his family, drunk and in a rage one morning; she had been told by Mrs. Riley that Mr. Riley had on one occasion set their bed on fire, that he had used a portion of their food stamp money to buy beer, and finally that her husband’s brother had forced her to have sex with him and had sexually molested Peggy Lee.

On cross examination, Mrs. Spurgeon noted that she quit working for TDHS approximately six months prior to her position being cut from the state budget and that there was no replacement for her during this six month period. She stated that she believed that Mrs. Riley loved her children although Mrs. Spurgeon had, on one occasion, observed bruises on Peggy Lee’s body that were the result of Mrs. Riley having whipped her.

Following the homemaker’s testimony, the proposed adoptive mother, Mrs. Blake-man, testified. Mrs. Blakeman stated that she and her husband have been married 13 years, that they have no natural children, and that they have been approved for adoption. She further testified that since the children arrived in their home in August, 1982, she and her husband had received no financial compensation, but had provided for the children from her salary as an inventory clerk at a local retail store and her husband’s farm profits. When asked about her intentions with regard to the children, she replied that she loved the children and wished to adopt them. Her husband, Mr. Blakeman, later substantiated this testimony.

Following the Blakeman’s testimony, the Riley children’s teacher testified that Charles had made “significant progress— ... two years worth” during the last year and that “Peggy [had] started being more outgoing and opening up and doing better at school, also.” The teacher also pointed out that Charles, as a special education student, and Peggy Lee, as a hyperactive child, needed individualized assistance and a highly structured environment.

The next witness, Hazel Watt, the Carroll County TDHS worker, reported having worked with the Riley children since 1980. When asked whether their current home would be suitable for adoption, she replied that it was one of the best, was stable, and that the children seemed to have adjusted well while there. She stated that she felt it would be in the children’s best interest to be adopted.

To the TDHS proof outlined above, the Rileys offered the following witnesses: First, Mr. Riley was called to testify. He stated that he worked at various farming jobs most of which were seasonal, and the majority of which were unsupervised. With regard to his present house, he stated that the roof does not leak, that the house is heated adequately by a wood-burning stove, and that the house is wired for electricity. He stated that his wife cooks lunch and dinner for him daily. He added that they have to bring water from his mother-in-law’s home which is approximately 100 yards away, but that he has water-line connections available. When questioned about his efforts to find improved housing, he stated that TDHS had done nothing to help him with his problem. With regard to his visitations with the children, Mr. Riley stated that he had had difficulty arranging for transportation and a suitable time to see his children. In addition, he testified that he had received no counseling and no help from TDHS since his children had been removed. He testified that he and his wife currently receive no foodstamps and no social security payments to supplement his $60 per week salary. He admitted having made no monetary contributions to his children’s support since they had been removed from his home. He does not use alcohol, and he loves his children and wants them back.

The defense’s second witness was Mrs. Riley. She testified that she had not seen her children in a long time, but admitted having seen Mrs. Carlisle and the children’s guardian ad litem recently. She said that she loves her children and “[is] trying real hard to get them back,” and promised to do better if the children were returned to her care.

With regard to her homemaking skills, Mrs. Riley stated that she could and does cook and clean on a regular basis and that she babysits with her brother’s children frequently during the day. She testified that their present house has neither an outdoor bathroom nor an outhouse, but said “we go to the junkyard.” On cross-examination Mrs. Riley responded that she did not know the date of her birth and that she could not tell which letter came after “N” or “W” in the alphabet.

James Beasley, Mrs. Riley’s brother, was the third defense witness called. He supported Mrs. Riley’s statement that she had kept his three children from 5:30 a.m. until 3:30 p.m. every day for one year and that she did that job well. He stated further that Mr. Riley had made home improvements on the current house in which the Rileys live. On cross examination, he admitted that his sister had some “mental problems.”

In addition to the testimony summarized above, the record also includes two reports prepared by the Riley children’s guardian ad litem Mr. Bruce Moss. Mr. Moss’ first report was prepared subsequent to his February 8, 1982 visit to the Riley home. At the time he evaluated the house with its “gaping cracks,” “numerous broken windows” and general filth to be “most definitely not suited for or conducive to the proper rearing of anyone, much less, minor children.” He went further and noted that the neighborhood was cluttered with abandoned vehicles and garbage. Both parents, whom he described as being “unkept and in need of cleansing,” suffered from mental infirmities which were not likely to worsen or to improve. Finally, he concluded that he saw no way that the Rileys could ever care for their children. He, therefore, recommended that the children’s best interest be served by terminating the Riley’s parental rights.

Mr. Moss’ second report included a finding that, while the Rileys had moved since his last visit, their house was “of very similar conditions.” Dirt, clutter and flies were observed throughout the house and metal, glass and other discarded objects were in the yard. The only food in the kitchen had been a sack of potatoes. There was no running water. Moss observed that during this visit Mrs. Riley could not remember the simplest bit of information— she did not remember him or his visit 18 months earlier.

The guardian ad litem also visited in the home of the proposed adoptive parents and found it favorable in every way. In addition, the children, when questioned, indicated that they wished to stay with the Blakemans. Mr. Moss’ report concludes with the observation “that the conditions which lead [sic] to removal over three years ago still persists and there seems little likelihood that it will be remedied in the near future.” His report cites specifically the dangerous physical conditions, the parents’ limited mental abilities, and the parents’ lack of efforts to remedy the problem areas as the bases for his conclusion.

Although the Rileys have presented three issues for review we must keep in mind that all issues in a case of this type are premised on the foundation issue of “what is in the best interest of the child.” With this observation we turn to an examination of the issues the Rileys raise through their counsel. For simplicity, we consider issues one and three together:

Whether TDHS provided the rehabilitative services to help the Rileys after their children were removed and whether TDHS followed the proper foster care plan review procedures.

Tenn.Code Ann. § 37-246² provided guidance for the court in ruling whether termination is in the best interests of children and whether there is a chance for an early remedy to the conditions that led to foster care:

(e) In determining whether there is likelihood that the child can be returned to the parent in the near future and whether termination of parental rights is in the best interests of the child, the court shall consider, but is not limited to, the following:

(1) Whether the parent has made such an adjustment of circumstances, conduct or conditions as to make it in the child’s best interests to return home in the foreseeable future;

(2) Whether the parent has failed to effect a lasting adjustment after reasonable efforts by available social agencies for such duration of time that lasting adjustment does not reasonably appear possible;

(3) Whether there is brutality, abuse or neglect toward other children in the family;

(4) Whether there is such use of alcohol or controlled substances as may render the parent consistently unable to care for the child;

(5) Whether the parent has paid a reasonable portion of substitute physical care and maintenance when financially able to do so;

(6) Whether the parent has maintained regular visitation or other contact with the child which was designed and implemented in a plan to reunite the child with the parent.

The major thrust of the Riley’s argument is that the failure of TDHS to comply with the requirements governing foster care set out in Tenn.Code Ann. § 37-1502, 1503 and 1505³ should prevent the court’s finding that TDHS made reasonable efforts to rehabilitate the family unit. The weakness in Riley’s argument is two-fold. First, as to the actual foster care plans required by the statute there is neither allegation nor proof that these plans were not executed. The Rileys do contend that the plans were not timely prepared. We note that the original plan was prepared within thirty days after the court found the children dependent and neglected and was ratified within thirty days thereafter. While the progress reports were not within the letter of the law requiring that they be made every six months for the first year, the first report was filed within four months of the court’s approval of the plan and the second report some seven and one-half months later.

The Rileys also allege that § 37-1505 requires an independent advisory board review of the foster care plan. We do not find the absence of this review to be fatal. At the time the Riley children were in the state’s custody, there was no review board in Obion County, and even had there been such a board, its “assessment and reports are advisory.” T.C.A. § 37-1505 (Supp.1979).

The second weakness in the Riley’s argument dealing with TDHS’s failure to comply with the statutory requirements lies in their assertion that the available social agency (in this instance TDHS) did not make reasonable efforts to assist the parents in an effort to rehabilitate the family unit. See Tenn.Code Ann. § 37-246(e)(2) (Supp.1979). We do not take this to mean that a failure by TDHS to strictly comply with the foster care plan statute precludes a finding of “reasonable efforts” within the meaning of the parental rights termination statute.

The Riley’s third issue is whether the visitation arrangements were conducive to achieving the goal of reuniting the family. They allege that TDHS did not fulfill its obligation with regard to maintaining a visitation program for them to visit their children. With regard to the sixth statutory requirement, the courts shall consider “whether the parent has maintained regular visitation with the children. 37-246(e)(6) Admittedly, Mrs. Riley inquired numerous times about the children and visiting with them. Difficulties arose because the Rileys had no telephone, seldom had transportation, and the children were in homes, many of which were not in Obion County. Testimony indicates TDHS did its part in arranging reasonable visitation up until the time that the state began termination of parental rights proceedings.

Since this case was tried by the court sitting without a jury, we review the case de novo upon the record with a presumption of correctness of the findings of fact by the trial court. Unless the evidence preponderates against the findings, we must affirm, absent error of law. T.R.A.P. 13(d).

At the conclusion of the evidence the trial court, as required by statute, filed written findings of fact. From our examination of the record we do not find that the evidence preponderates against the trial court’s written findings that TDHS made reasonable rehabilitative efforts pursuant to an adequate foster care plan, that TDHS fulfilled its obligation in helping the parents arrange visitation and transportation, and that the best interest of the children require termination of their natural parents’ rights.

We point out, as the trial judge did, that the Rileys had notice of all proceedings and were either represented by counsel or had matters explained to them so that they understood as well as they were capable of understanding. The children also had a guardian ad litem during the time the termination proceedings were taking place.

We are not unmindful of the trauma involved in removing children from their natural parents and in terminating those parents’ rights. Neither do we intend to say that children should be placed with foster and/or adoptive parents simply because those parents can provide more material possessions and opportunities for them than can their natural parents. We base our holding in this case upon what we have found in the record that indicates that for physical safety and psychological maturation the best interest of Peggy Lee and Charles Riley will be best served by upholding the trial court’s decision and the rights of their natural parents should be permanently terminated.

Accordingly, the judgment of the trial court is affirmed, costs are assessed against TDHS, and the case is remanded for further proceedings as necessary.

TOMLIN, J., concurs. NEARN, P.J., W.S., dissents.

1 . This statute has been amended in several respects and is now T.C.A. 37-l-147(d) (1984).

2 . This section is now 37-l-147(e) (1984).

3 . These sections are now 37-2-403, 37-2-404 and 37-2-406 (1984) respectively.