State of Tennessee Department of Children's Services v. Dale Baruchman In the Matter of: B.B. (d/o/b 11/16/90) and H.B. (d/o/b 3/2/89)

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
ASSIGNED ON BRIEFS JANUARY 6, 2005
STATE OF TENNESSEE, DEPARTMENT OF CHILDREN’S SERVICES v.
DALE BARUCHMAN
IN THE MATTER OF: B.B. (d/o/b 11/16/90) and H.B. (d/o/b 3/2/89)
Direct Appeal from the Chancery Court for Shelby County
No. CH-02-0344 D. J. Alissandratos, Chancellor
No. W2004-02071-COA-R3-PT - Filed March 29, 2005
This is a parental termination case involving a mother with a documented history of severe mental
illness. The Department of Children’s Services filed a petition to terminate the mother’s parental
rights to her minor son in February 2002, alleging the grounds of persistent conditions and failure
to substantially comply with the permanency plans. The department filed an amended petition in
August 2002, seeking to terminate the mother’s parental rights to her minor daughter based upon the
same grounds. In September 2002, the department filed another amended petition alleging as an
additional ground for termination the mother’s mental incompetence. Following a hearing over two
non-consecutive days, the chancery court entered an order finding the department had proven all the
grounds it alleged for terminating the mother’s parental rights by clear and convincing evidence, and
terminating the mother’s parental rights would be in the children’s best interest. While we disagree
with the trial court’s finding that DCS proved each ground for termination by clear and convincing
evidence, we affirm the chancery court’s decision to terminate the mother’s parental rights.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed
ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY
M. KIRBY , J., joined.
William T. Winchester, Memphis, TN, for Appellant
Paul G. Summers, Attorney General & Reporter, Elizabeth C. Driver, Assistant Attorney General,
Nashville, TN, for Appellee
OPINION
I.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The circumstances leading to the filing of the petitions for termination of the parental rights
of Dale Baruchman (“Mother”) began in 1984. In 1984, the Tennessee Department of Children’s
Services (“DCS”) received a referral regarding Mother’s mental state after she exhibited strange
behavior following the birth of her oldest daughter, B.J.B. (dob: 04/30/1984).1 DCS sent Mother to
the LeBonheur Center for Children and Parents (“LCCP”) to be evaluated. Dr. Sonny Gentry (“Dr.
Gentry”), a clinical psychologist with LCCP, conducted the evaluation and determined that Mother
was “a very disturbed individual,” presenting symptoms of schizophrenia. Dr. Gentry did not believe
Mother could appropriately parent B.J.B., therefore, he recommended that DCS not return B.J.B. to
Mother’s custody and recommended that Mother undergo psychological counseling to address her
mental problems. In 1985, Dr. Gentry conducted a follow-up evaluation of Mother and determined
that, while she had made “slight improvement,” Mother had not improved enough mentally to
warrant returning B.J.B. to her custody. Dr. Gentry recommended that Mother undergo further
psychiatric treatment. Accordingly, DCS retained custody of B.J.B. from 1984 until 1987 when DCS
returned B.J.B. to Mother’s custody.
In 1993, DCS received referrals alleging the abuse and neglect of Mother’s children. DCS
once again referred Mother and the children to LCCP for evaluations and took custody of the
children. By 1993, Mother, in addition to B.J.B., age 9 at the time, had two additional children,
B.P.B. (dob: 11/16/1990), age 3 at the time, and H.L.B. (dob: 03/02/1989), age 4 at the time. Dr.
Gentry conducted the evaluation and found more evidence of a “schizophrenic-like disorder” in
Mother, concluding the symptoms were “much more prominent and obvious.” During the course
of the evaluation, Dr. Gentry’s report indicated that Mother reported two psychiatric hospitalizations.
Dr. Gentry recommended that the children remain in long-term foster care while Mother undergo
psychiatric treatment. Although the record does not reveal exactly when, at some point following
the 1993 evaluation the children were returned to Mother’s custody.
In 2000, DCS received another referral regarding Mother after B.P.B. chased H.L.B. with a
butcher knife. Mother apparently had B.P.B. arrested and the juvenile court placed B.P.B. in
Lakeside Psychiatric Hospital (“Lakeside”) for a period of one year. Prior to this incident, B.P.B.
had experienced problems in several schools resulting in his expulsion for violent behavior. B.P.B.
had also been evaluated by mental health professionals who diagnosed him with ADHD and schizo-
type personality disorder. Prior to entering Lakeside, B.P.B. received treatment from several other
facilities, but these facilities notified DCS that Mother would not cooperate with her son’s treatment,
failed to understand his problem, or sought to minimize it. DCS also received reports from Lakeside
of problems regarding Mother to the effect that, during visitation, Mother would sneak in contraband
to B.P.B. at the facility. Personnel at Lakeside found matches in his clothing which B.P.B.
1
B.J.B. is presently an adult, therefore, the parental rights regarding B.J.B. are not at issue in this case.
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apparently used to start a fire at the facility. B.P.B. was released from Lakeside in October 2001 and
placed in foster care.
DCS also removed B.J.B. and H.L.B. in 2001 following a referral regarding allegations that
Mother hit B.J.B. The girls were placed with foster parents and underwent mental health counseling
through Jewish Family Services. One of the foster parents, Jeffery Freiden (“Mr. Freiden”), began
working with the family around 1999 or 2000 providing “intensive family preservation.” He spent
six to ten hours a week for a thirty day period inside the home and described it as “disheveled” and
“chaotic” when he first arrived. Mr. Freiden discovered that Mother had not filled B.P.B.’s
prescriptions, B.J.B. was running the household, the children were practically raising themselves,
and there was no adult supervision. On two occasions, B.J.B. called Mr. Freiden and reported that
Mother had struck her. Mr. Freiden also discovered that H.L.B. missed fifty-six days of school
despite living directly across the street from the school.
On July 5, 2001, DCS developed a permanency plan for H.L.B. calling for: (1) Mother to
follow through with treatment recommendations, (2) Mother to demonstrate to both DCS and a
mental health provider that she understands the importance of the recommendations and how to
implement them, (3) DCS to monitor Mother’s follow through and provide feedback, (4) Mother to
participate in an evaluation through LCCP or another licensed professional and provide DCS with
a report of the results, and (5) DCS to make a referral to LCCP for an evaluation and assist Mother
with scheduling the visit. Dr. Gentry evaluated the family again in 2001. Upon doing so, he found
that Mother seemed to still be suffering from a psychiatric disorder and had very little insight into
her own illness or those of her children. In turn, LCCP recommended that DCS terminate Mother’s
parental rights. Dr. Gentry also recommended that Mother undergo individual psychotherapy.
On February 12, 2002, DCS entered a revised permanency plan for B.P.B. which essentially
required the same five things as listed in the permanency plan created for H.L.B., with the added
requirement that Mother comply with DCS policies regarding visitation. DCS created a second
revised permanency plan for B.P.B. on March 11, 2003, which added the following additional
criteria for Mother to meet: (1) Mother would provide DCS with evidence that she is seeing a trained
therapist and provide DCS with regular reports, and (2) work on anger management issues.
On February 21, 2002, DCS filed a petition to terminate the parental rights of Mother, Danny
Brooks (“Father”), and any unknown fathers in the Chancery Court of Shelby County as to B.P.B.2
In addition to alleging that termination was in the children’s best interest pursuant to section 36-1-
113(i) of the Tennessee Code, DCS alleged the following grounds for termination: (1) persistent
conditions pursuant to section 36-1-113(g)(3) of the Tennessee Code, (2) substantial noncompliance
with the responsibilities outlined in the permanency plans implemented by DCS pursuant to section
36-1-113(g)(2), and (3) willful abandonment by Father pursuant to section 36-1-102(1)(A) of the
Tennessee Code. On August 14, 2002, DCS filed a motion to amend the petition to include a request
2
The petition and the permanency plans implemented by DCS identify Danny Brooks as the biological father
of B.P.B.
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to terminate the parental rights of Mother and Father as to H.L.B. DCS filed an amended petition
on September 16, 2002, with the trial court stating that the grounds for termination listed in the
original petition applied to this child as well.3
On October 4, 2002, the chancery court entered an order appointing Patricia Chavetz (“Ms.
Chavetz”) guardian ad litem for the children. On December 4, 2003, DCS filed an amended petition
with the chancery court adding, as an additional ground for termination, the mental incompetency
of Mother pursuant to section 36-1-113(g)(8) of the Tennessee Code. According to a letter submitted
by Mother as an exhibit at trial, she recently started mental health treatment with Dr. Sheena Rose
(“Dr. Rose”). On February 13, 2004, Mother filed a motion asking the chancery court to grant her
a continuance so that Dr. Rose could conduct a joint psychological evaluation with Mother and the
children. While the record does not contain an order either denying or approving this request, it is
apparent that DCS refused to allow Dr. Rose to conduct the joint evaluation.
On July 2, 2004, following a hearing, the chancery court entered a final order terminating
Mother’s parental rights regarding H.L.B. and B.P.B. In addition, the chancery court terminated the
parental rights of Father and any unknown fathers by default judgment since they failed to appear
or respond to the petition. Mother filed an appeal to this Court presenting the following issues for
our review:
I. Whether the chancery court erred in terminating Mother’s parental rights for failure to
comply with the terms of the permanency plan;
II. Whether the chancery court erred in terminating Mother’s parental rights based on a finding
of Mother’s mental incompetency;
III. Whether the chancery court erred in finding that DCS made reasonable efforts toward
reunification of Mother with her children;
IV. Whether the chancery court erred in terminating Mother’s parental rights based on a finding
that persistent conditions still exist and are unlikely to be remedied in the near future;
V. Whether termination of Mother’s parental rights is in the childrens’ best interest; and
VI. Whether the trial court erred in awarding DCS a default judgment against Father and any
unknown fathers.
For the reasons set forth herein, we affirm the ruling of the chancery court.
II.
STANDARD OF REVIEW
Both the United States Constitution and the Tennessee Constitution recognize a biological
parent’s fundamental right to the care, custody, and control of their children. Santosky v. Kramer,
3
The amended petition identified Danny Brooks as the putative father of H.L.B. In addition, DCS alleged that
it could not ascertain the whereabouts of Danny Brooks and requested the chancery court allow service on Mr. Brooks
by publication.
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455 U.S. 745, 753 (1982); Stanley v. Illinois, 405 U.S. 645, 651 (1972); Hawk v. Hawk, 855 S.W.2d
573, 577 (Tenn. 1993); In re Swanson, 2 S.W.3d 180, 187 (Tenn. Ct. App. 1999). This is not,
however, an absolute right immune from state involvement, In re Drinnon, 776 S.W.2d 96, 97
(Tenn. Ct. App. 1989), as the state may seek to terminate a parent’s parental rights in certain
statutorily defined circumstances. In re Z.J.S., No. M2002-02235-COA-R3-JV, 2003 Tenn. App.
LEXIS 415, at *28–35 (Tenn. Ct. App. June 3, 2003); Tenn. Code Ann. § 36-1-113(g) (2003).
In order to terminate a parent’s parental rights to their minor children, the state must prove
the existence of one of the statutory grounds for termination by clear and convincing evidence and
that termination is in the childrens’ best interest. Santosky, 455 U.S. at 769–70; In re Valentine, 79
S.W.3d 539, 546 (Tenn. 2002); In re Drinnon, 776 S.W.2d at 97; Tenn. Code Ann. § 36-1-113(c)
(2003). A finding that the state has proven the existence of any one of the statutory grounds for
termination found in section 36-1-113(g) of the Tennessee Code is enough to support the trial court’s
decision to terminate a parent’s parental rights. In re Valentine, 79 S.W.3d at 546; see also In re
C.W.W., 37 S.W.3d 467, 475 (Tenn. Ct. App. 2000).
The state is required to prove the grounds for termination by clear and convincing evidence
in order “to prevent the unwarranted termination or interference with the biological parents’ rights
to their children.” In re M.W.A., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998). This Court has
described this standard in the following terms:
Although it does not require as much certainty as the “beyond a
reasonable doubt” standard, the “clear and convincing evidence”
standard is more exacting than the “preponderance of the evidence”
standard. O’Daniel v. Messier, 905 S.W.2d 182, 188 (Tenn. Ct. App.
1995); Brandon v. Wright, 838 S.W.2d 532, 536 (Tenn. Ct. App.
1992). 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. Hodges v. S.C. Toof &
Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992); O’Daniel v. Messier, 905
S.W.2d at 188. 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. O’Daniel v. Messier, 905 S.W.2d at 188;
Wiltcher v. Bradley, 708 S.W.2d 407, 411 (Tenn. Ct. App. 1985). 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. Lettner v. Plummer, 559 S.W.2d 785, 787 (Tenn. 1977);
Goldsmith v. Roberts, 622 S.W.2d 438, 441 (Tenn. Ct. App. 1981);
Brandon v. Wright, 838 S.W.2d at 536.
State v. Howell, No. W2004-00295-COA-R3-PT, 2004 Tenn. App. LEXIS 800, at *8–10 (Tenn. Ct.
App. 2004).
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In reviewing a trial court’s findings of fact in a parental termination case, we are bound by
the following standard of review:
Because of the heightened burden of proof required by Tenn. Code
Ann. § 36-1-113(c)(1), we must adapt Tenn. R. App. P. 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. App. 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 whether the
facts, either as found by the trial court or as supported by the
preponderance of the evidence, clearly and convincingly establish the
elements required to terminate a biological parent's parental rights.
Jones v. Garrett, 92 S.W.3d at 838; In re Valentine, 79 S.W.3d at
548-49; In re Adoption of Muir, 2003 Tenn. App. LEXIS 831, 2003
WL 22794524, at *2; In re Z.J.S., 2003 Tenn. App. LEXIS 415, No.
M2002-02235-COA-R3-JV, 2003 WL 21266854, at *10 (Tenn. Ct.
App. June 3, 2003) (No Tenn. R. App. P. 11 application filed); Ray
v. Ray, 83 S.W.3d at 733; In re L.S.W., 2001 Tenn. App. LEXIS 659,
No. M2000-01935-COA-R3-JV, 2001 WL 1013079, at *5 (Tenn. Ct.
App. Sept. 6, 2001), perm. app. denied (Tenn. Dec. 27, 2001).
In re M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct. App. 2004). We review a trial court’s conclusions of
law in a parental termination case under a purely de novo standard of review. In re Valentine, 79
S.W.3d at 547.
III.
TERMINATION OF MOTHER ’S PARENTAL RIGHTS
A.
Failure to Substantially Comply with the Permanency Plans
We begin with Mother’s assertion on appeal that DCS failed to prove by clear and convincing
evidence that she failed to substantially comply with the requirements of the permanency plans
implemented by DCS. Within thirty (30) days after a child enters into foster care, DCS is required
to implement a permanency plan which sets forth in specific terms a statement of responsibilities that
are reasonably related to the achievement of the goals set forth in the plan. Tenn. Code Ann. § 37-2-
403(a) (2003). A parent’s parental rights may be terminated when DCS proves by clear and
convincing evidence that the parent has failed to substantially comply with the statement of
responsibilities in a permanency plan. Tenn. Code Ann. § 36-1-113(g)(2) (2003). “Substantial
noncompliance is a question of law which we review de novo with no presumption of correctness.”
In re Valentine, 79 S.W.3d at 548.
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In determining whether a parent has failed to substantially comply with a permanency plan,
our supreme court has provided the courts of this state with the following guidance:
Substantial noncompliance is not defined in the termination statute.
The statute is clear, however, that noncompliance is not enough to
justify termination of parental rights; the noncompliance must be
substantial. Black’s Law Dictionary defines “substantial” as “of real
worth and importance.” Black’s Law Dictionary 1428 (6th ed. 1990).
In the context of the requirements of a permanency plan, the real
worth and importance of noncompliance should be measured by both
the degree of noncompliance and the weight assigned to that
requirement.
Id. We agree with the chancery court’s finding that the requirements in the permanency plan,
especially the requirement that Mother undergo psychological counseling, were reasonably related
to remedying the conditions which necessitated foster care placement. However, we cannot agree
that DCS proved by clear and convincing evidence that Mother failed to substantially comply with
the requirements of the permanency plans implemented by DCS in this case.
The primary goal of the permanency plan implemented by DCS was to remedy Mother’s
mental illness before the children would be returned to her custody. This is evidenced by the
testimony of Ginger Comstock (“Ms. Comstock”), the DCS caseworker assigned to Mother’s case.
Ms. Comstock testified that the main reason DCS sought to terminate Mother’s parental rights was
due to her failure to follow the treatment recommendations set forth by LCCP. In an effort to
address Mother’s mental illness, the permanency plans required Mother to follow LCCP
recommendations, demonstrate her understanding of those recommendations, and provide evidence
in the form of progress reports that she is seeing a mental health professional. Since these were the
crucial requirements in the permanency plans, we give Mother’s actions toward meeting this goal
the greatest weight in determining whether she substantially complied with the permanency plans.
See In re Valentine, 79 S.W.3d at 548.
Upon reviewing the record, we find no testimony or other evidence indicating what efforts
DCS made, other than evaluating Mother four times over twenty years, to assist Mother to obtain
psychological counseling to meet the goals of the permanency plans. Ms. Comstock did briefly
testify concerning some of the social services agencies provided by DCS, yet Dr. Gentry’s report on
the evaluation he conducted in November of 1993 illustrates the insufficiency of those efforts. The
report references the services offered by a Home Ties therapist, then goes on to state that “the
therapist suggested that Ms. Baruchman might need more specialized therapy than they have been
able to offer.” In addition, the Affidavit of Reasonable Efforts filed by DCS in this case identifies
Mother’s need for psychological counseling, yet the section listing the services provided by DCS to
aid Mother in reaching this goal merely states that “mother was in individual counseling.” (emphasis
added). Each evaluation report filed by Dr. Gentry identifies Mother’s battle with mental illness and
identifies her need for continued counseling, yet the record contains no evidence showing DCS
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attempted to assist Mother with such counseling. In 1999 or 2000, DCS sent Mr. Freiden into the
Baruchman home to conduct “intensive family preservation” for six to ten hours a week for thirty
days. However, Mr. Freiden did not offer any testimony indicating he provided the type of intensive
psychological counseling mandated by Dr. Gentry.
Additionally, Mother denied ever receiving a copy of the LCCP recommendations. In fact,
Ms. Comstock’s own testimony reveals that Mother never received a written copy of the LCCP
recommendations which she was to comply with. Ms. Comstock stated that, after she received Dr.
Gentry’s 2001 report, “[t]he procedure is that the people from CCP discuss it with the Department
and then they — usually that same day, they discuss it with the family and they go over the results
with the person that they did the evaluation on.” When asked if LCCP actually informed Mother of
the requirements set forth by LCCP and Dr. Gentry, Ms. Comstock testified that she assumed they
did, but had no personal knowledge of whether they actually did so. Dr. Gentry also testified in this
case, but the record reveals no testimony by Dr. Gentry, and we are unable to find any statements in
his evaluation reports, showing that he met with Mother and explained the requirements regarding
mental health therapy.
Ms. Comstock did testify that, during their meetings with Mother to go over the permanency
plans, DCS personnel advised Mother of the LCCP recommendations with which she needed to
comply. However, even if DCS ensured that Mother at least orally received the requirements set
forth by LCCP, the record reveals that it is doubtful this alone would aid Mother in completing those
requirements. The testimony of the state’s own witnesses demonstrated that, based on the facts in
this case, placing the burden of seeking treatment upon the Mother alone would not accomplish the
goal of alleviating Mother’s mental illness so that she could be reunited with her children. Dr.
Gentry testified that, without treatment, Mother would be unable to fix her psychological problems.
In fact, Dr. Gentry stated that Mother has a “lifelong illness” that is “not curable,” and she would
need regular long-term therapy and medication to function. Ms. Comstock offered the following
additional testimony:
A. To me, personally, I don’t feel like she flat out did not do the
recommendations because she just didn’t want to. I feel like that she
may not have understood what we were asking her to do or what has
been asked of her for years and years.
Based on the foregoing testimony, it is difficult for this Court to perceive exactly how DCS
contemplated Mother would meet the goals set forth in the permanency plans.
The facts of this case are factually similar to our decision in In re M.E., No. M2003-00859-
COA-R3-PT, 2004 Tenn. App. LEXIS 526 (Tenn. Ct. App. Aug. 16, 2004). In that case, the mother
underwent a psychological evaluation revealing several psychological problems. In re M.E., 2004
Tenn. App. LEXIS 526, at *7–8. The evaluating doctor recommended that the mother undergo
individual therapy, but DCS never provided the recommended services. Id. at *9. We concluded
that, despite the numerous services provided to the mother, DCS “failed to provide the most obvious
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and essential service Mother needed, the mental health services recommended by [the doctor].” Id.
at *22–23. Accordingly, we cannot find that DCS proved by clear and convincing evidence that
Mother failed to substantially comply with the permanency plan regarding the requirements relating
to her mental health.
DCS also alleges that Mother failed to comply with the permanency plan requirement that
she exhibit anger management skills. Once again, though DCS required Mother to work on anger
management issues, the record is devoid of any evidence indicating DCS helped her achieve this
goal. In fact, Ms. Comstock testified that DCS did not provide the anger management classes to
Mother. Mother took it upon herself to go to anger management classes and presented Ms.
Comstock with the certificate proving she completed the course. In finding that Mother failed to
comply with the permanency plan in this regard, the chancery court relied upon the testimony offered
by several witnesses, including Mother. Ms. Comstock testified that, during a supervised visit,
Mother cursed the students at the facility. Mother admitted at trial that, after completing the anger
management class, she was arrested for domestic violence against her boyfriend. Interestingly, DCS
did not require Mother to work on her anger management issues until it implemented the March 11,
2003, permanency plan, well after filing its petition to terminate her parental rights.
Finally, the chancery court found that Mother failed to substantially comply with the
permanency plans by failing to abide by the visitation rules. Specifically, the trial court found that
Mother engaged in unsupervised visits or encouraged the children to leave the foster home and meet
her. We find that the record supports the trial court’s factual findings in every regard as to these last
two requirements in the permanency plans.
As previously stated, however, when determining whether a parent substantially complied
with the permanency plan, “the real worth and importance of noncompliance should be measured
by both the degree of noncompliance and the weight assigned to that requirement.” In re Valentine,
79 S.W.3d at 548. Partial failure to comply with two of the five goals set forth in the permanency
plan, especially when the requirements relating to anger management and visitation are not the main
obstacles to reunification, cannot amount to substantial noncompliance. State v. B.J.A.L., No.
E2002-00292-COA-R3-JV, 2002 Tenn. App. LEXIS 674, at *16 (Tenn. Ct. App. Sept. 19, 2002).
“Terminating parental rights based on Tenn. Code Ann. § 36-1-113(g)(2) requires more proof than
that a parent has not complied with every jot and tittle of the permanency plan.” In re M.J.B., 140
S.W.3d 643, 656 (Tenn. Ct. App. 2004). Trivial, minor, or technical deviations from a permanency
plan’s requirements will not be deemed to amount to substantial noncompliance.” Id. at 657
(citations omitted).
Ms. Comstock testified that Mother complied with two-thirds of the 2001 permanency plan;
she complied with some, but not all, of the 2002 permanency plan; and over half of the 2003
permanency plan. In addition, Ms. Comstock stated that, in her opinion, Mother did substantially
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comply with the permanency plans.4 Based on the record before this Court, we cannot say that the
state proved by clear and convincing evidence that Mother failed to substantially comply with the
requirements set forth in the permanency plans implemented by DCS. Accordingly, we reverse the
trial court’s findings regarding this ground for termination of Mother’s parental rights.
Closely related to the aforementioned issue are the efforts used by DCS in working toward
reunification of Mother and the children and whether those efforts proved reasonable. Prior to
ordering that a parent’s parental rights be terminated, the trial court must find that DCS has made
“reasonable efforts” to “prevent the need for removal” or “make it possible for the child to return
home.” Tenn. Code Ann. § 37-1-166(a) (2003); see also In re C.M.M., No. M2003-01122-COA-R3-
PT, 2004 Tenn. App. LEXIS 160, at *22 (Tenn. Ct. App. Mar. 9, 2004). Upon reviewing the trial
court’s final order, we find no mention of the reasonable efforts made by DCS in this case. In her
brief, Mother contends that the only service DCS provided toward reunification was regular
visitation. Strangely, the state’s brief does not contain an argument in rebuttal to Mother’s
allegations on appeal regarding DCS’s failure to use reasonable efforts in this case.
The legislature has defined “reasonable efforts” to mean “the exercise of reasonable care and
diligence by the department to provide services related to meeting the needs of the child and the
family.” Tenn. Code Ann. § 37-1-166(g)(1) (2003) (emphasis added). As we have previously stated:
In many circumstances, the success of a parent’s remedial
efforts is intertwined with the efforts of the Department’s staff to
provide assistance and support. State Dep’t of Children’s Servs. v.
Demarr, 2003 Tenn. App. LEXIS 569, 2003 WL 21946726, at *10.
Reasonable efforts entail more than simply providing parents with a
list of service providers and sending them on their way. The
Department’s employees must use their superior insight and training
to assist parents with the problems the Department has identified in
the permanency plan, whether the parents ask for assistance or not.
In re D.V.V., 2002 Tenn. App. LEXIS 126, 2002 WL 225891, at *8.
However, the remedial responsibility does not rest solely on the
Department’s shoulders. Parents must also make reasonable efforts
to rehabilitate themselves and to remedy the conditions that required
them to be separated from their children. In re R.C.V., 2002 Tenn.
App. LEXIS 811, 2002 WL 31730899, at *12.
In re C.M.M., 2004 Tenn. App. LEXIS 160, at *27–28; see also In re R.C.V., No. W2001-02102-
COA-R3-JV, 2002 Tenn. App. LEXIS 811, at *39 (Tenn. Ct. App. Nov. 18, 2002) (“Reunification
4
W e agree with the trial court in that the legal conclusion drawn by the DCS caseworker assigned to a case is
not binding upon the courts of this state in parental termination cases. However, this statement by the DCS caseworker
is instructive when placing the anger management and visitation requirements in the proper context.
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of a family is a two-way street, and the law does not require DCS to carry the entire burden of this
goal.”).
This is not an instance where DCS requested a parent to undergo a psychological evaluation
and the parent refused. See In re S.L.R., No. M2004-01565-COA-R3-PT, 2004 Tenn. App. LEXIS
880, at *62–64 (Tenn. Ct. App. Dec. 28, 2004). Mother underwent every evaluation requested by
DCS, yet Ms. Comstock expressly testified that she felt Mother did not understand what DCS
required her to do. When DCS establishes a reasonable and appropriate recommendation in a
permanency plan, DCS is obligated to offer reasonable assistance in helping the parent achieve that
goal. See State v. Demarr, No. M2002-02603-COA-R3-JV, 2003 Tenn. App. LEXIS 569, at *35
(Tenn. Ct. App. Aug. 13, 2003). The Affidavit of Reasonable Efforts submitted by DCS in this case
makes no mention of their attempt to provide Mother with any assistance toward complying with the
recommendations of LCCP related to her mental health.
While we have not required the efforts by DCS to be “Herculean,” In re C.M.M., 2004 Tenn.
App. LEXIS 160, at *25, the record in this case is devoid of any evidence, other than four
evaluations conducted by Dr. Gentry spread over twenty years, showing what efforts DCS made
toward helping Mother reach the goals of the permanency plans regarding her mental health issues.
In addition, Ms. Comstock testified that DCS did not provide Mother with anger management classes
despite requiring her to address such issues prior to being reunited with her children. While Ms.
Comstock did briefly mention some of the social services agencies that were sent to help Mother,
“those services were of little consequence due to the Department’s failure to provide the most
critical, indeed the most obvious service required by Mother, psychological counseling.” In re M.E.,
No. M2003-00859-COA-R3-PT, 2004 Tenn. App. LEXIS 526, at *31 (Tenn. Ct. App. Aug. 16,
2004). Accordingly, we find the trial court erred in finding that DCS made reasonable efforts toward
reuniting Mother and her children.
B.
Mother’s Mental Incompetency
DCS filed an amended petition on December 4, 2003, to assert, as an additional ground for
termination, section 36-1-113(g)(8)(B) of the Tennessee Code, which permits the trial court to
terminate a parent’s parental rights when:
(i) The parent . . . of the child is incompetent to adequately provide
for the further care and supervision of the child because the parent’s
. . . mental condition is presently so impaired and is so likely to
remain so that it is unlikely that the parent or guardian will be able to
assume or resume the care of and responsibility for the child in the
near future, and
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(ii) That termination of parental . . . rights is in the best interest of the
child.
Tenn. Code Ann. § 36-1-113(g)(8)(B) (2003).5 On appeal, Mother argues that DCS failed to clearly
and convincingly prove this ground for termination because: (1) DCS refused to allow Dr. Rose to
conduct a joint evaluation with the children to assess Mother’s competency, (2) the evaluation
conducted by Dr. Gentry in 2001 is three years old, (3) Dr. Rose’s letter stated Mother posed no
danger to her children, and (4) Rabbi Nathan Greenblait (“Rabbi Greenblait”), who began
supervising Mother’s visitation with her children at the end of 2002, testified that Mother does not
pose a danger to her children.
A parent’s actions regarding their inability to care for a child due to a mental disability do
not have to be willful before such actions can form a basis for terminating that parent’s parental
rights. Tenn. Code Ann. § 36-1-113(g)(8)(C) (2003); State v. Smith, 785 S.W.2d 336, 338 (Tenn.
1990). When Dr. Gentry evaluated Mother in 1984 following the birth of her first child, he noted
Mother to be a “very disturbed individual” presenting symptoms of schizophrenia. When he
conducted a follow-up evaluation in 1985, he noted Mother had made only “slight improvement.”
When he reevaluated Mother in 1993, he noted “more evidence of a schizophrenic-like disorder,”
and the symptoms were “much more prominent and obvious.” When he evaluated Mother for the
last time in 2001, Dr. Gentry noted “she seemed to be suffering from a serious psychiatric disorder.”
In fact, Mother freely admitted at the hearing that she has been diagnosed with borderline
personality disorder, schizophrenia, bipolar disorder, and depression. During one of her evaluations
with Dr. Gentry, Mother reported two prior psychiatric hospitalizations. In addition, she is currently
only taking medication for her depression. Dr. Gentry testified that Mother’s illness “is a lifelong
illness” that “is not curable,” and Mother’s illness is “at best, treatable,” with proper medication.
The effects of this illness on her children is also demonstrated in the record. When Mr. Freiden first
went to the Baruchman home, he noted the house to be “chaotic,” Mother had not filled B.P.B.’s
prescriptions which controlled his behavior, the children had no adult supervision, B.J.B.was given
adult roles and primarily ran the house, and H.L.B. missed fifty-six days of school one year despite
living directly across the street from the school. In addition, Mother admitted at trial that she struck
B.J.B., and Mr. Freiden testified that B.J.B. called him twice to report Mother hit her.
The trial court placed a great amount of credibility on Dr. Gentry’s testimony over that of Dr.
Rose’s letter. “The weight, faith, and credit to be given to any witness’s testimony lies in the first
instance with the trier of fact, and the credibility accorded will be given great weight by the appellate
court.” Weatherford v. Weatherford, No. W1999-01014-COA-R3-CV, 2000 Tenn. App. LEXIS 837,
5
The statute references “a separate, independent proceeding conducted prior to an adoption proceeding to
determine if the parent . . . is mentally incompetent to provide for the further care and supervision of the child, and to
terminate that parent’s . . . rights to the child.” Tenn. Code Ann. § 36-1-113(g)(8)(A) (2003). The termination hearing
conducted by the chancery court in this case satisfies this requirement. In re R.C.V., No. W2001-02102-COA-R3-JV,
2002 Tenn. App. LEXIS 811, at *38 (Tenn. Ct. App. Nov. 18, 2002).
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at *4 (Tenn. Ct. App. Dec. 29, 2000) (citations omitted). It was proper for the trial court to discount
Dr. Rose’s letter when it contained no indication of her professional qualifications, how many times
she interviewed Mother, the basis for her opinions regarding Mother’s mental health, or the tests
utilized to reach such conclusions. See In re R.L.H., No. M2002-01179-COA-R3-JV, 2003 Tenn.
App. LEXIS 414, at *27–28 (Tenn. Ct. App. June 3, 2003).
Mother’s mental incompetence is further demonstrated by her conduct on the witness stand,
which the trial court noted in its final order. The record reveals several instances where Mother was
unable to appreciate the severity of her illness; became argumentative with the attorney for the state
and called her “a liar” when discussing Mother’s mental illness; became argumentative with the
court; and had to be asked by the court to control herself and quit yelling. We are mindful that we
are reviewing a cold record, however, these episodes offer an additional insight into Mother’s present
mental state. Regarding Rabbi Greenblait’s testimony, while he did state he felt Mother posed no
risk to the children, he also testified that he had no knowledge of any of Mother’s psychological
problems. Given Mother’s testimony and behavior at trial, along with her documented history of
severe mental illness for over twenty years, it is clear that a joint evaluation this late in the process
would change little.
Despite the fact that the last evaluation conducted by Dr. Gentry occurred in 2001, the record
clearly and convincingly establishes that, over the course of twenty years, Mother has demonstrated
that she “is incompetent to adequately provide for the further care and supervision of the child[ren]
because the parent’s . . . mental condition is presently so impaired and is so likely to remain so that
it is unlikely that the parent . . . will be able to assume or resume the care of and responsibility for
the child in the near future.” Tenn. Code Ann. § 36-1-113(g)(8)(B)(i) (2003). In addition, this
ground for terminating Mother’s parental rights “[does] not necessitate that the Department make
reasonable reunification efforts before filing a termination petition.” In re C.M.M., No. M2003-
01122-COA-R3-PT, 2004 Tenn. App. LEXIS 160, at *21 (Tenn. Ct. App. Mar. 9, 2004).
Accordingly, we affirm the chancery court’s finding that Mother’s parental rights should be
terminated based upon this ground. Having found that the record reveals DCS clearly and
convincingly established this ground for termination, we need not address Mother’s issue related to
whether DCS has proven the existence of “persistent conditions” pursuant to section 36-1-
113(g)(3)(A) of the Tennessee Code. In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002); see also
In re C.W.W., 37 S.W.3d 467, 475 (Tenn. Ct. App. 2000).
C.
Best Interest of the Children
Rather than argue against the factors set forth in section 36-1-113(i) of the Tennessee Code,
Mother argues that the trial court erred in finding that termination was in the childrens’ best interest
because the guardian ad litem failed to ask the court to appoint a separate attorney for the minor
children when H.L.B. told the guardian ad litem, Ms. Chavetz, that she wished to be returned to
Mother’s custody. Specifically, Mother argues that Tennessee Supreme Court Rule 40(e) required
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Ms. Chavetz to seek the appointment of another lawyer when she determined the minor child’s best
interest conflicted with the preferences of the minor child. In support of this position, Mother relies
on the testimony of Ms. Comstock to the effect that H.L.B. told her four or five months before trial
that she wanted to go back to her Mother and a statement in the guardian ad litem’s report to the
same effect.
We find no merit in this position. First, we find no mention in the record that Mother’s
counsel raised this issue in the chancery court so that the chancery court could have an opportunity
to rule upon the issue. “It has long been the general rule that questions not raised in the trial court
will not be entertained on appeal. . . .” In re E.N.R., 42 S.W.3d 26, 32 (Tenn. 2001). Second,
contrary to Mother’s assertion, the record reveals a confused minor who, in addition to stating she
wanted to remain with Mother in the months leading up to the hearing, also stated she wished to be
adopted. This does not rise to the level of a child “urging” the guardian ad litem to take a position
the guardian ad litem feels is contrary to the child’s best interest. See Tenn. Sup. Ct. R. 40(e)(2)
(2003).
Although Mother does not address the factors found in section 36-1-113(i) of the Tennessee
Code, we find many of the statutory factors apply in this case and indicate the trial court was correct
in finding termination to be in the childrens’ best interest. As explained more fully supra, the record
reveals Mother’s mental illness has not been adjusted to a level which would make it safe for the
children to be returned to her custody. Tenn. Code Ann. § 36-1-113(i)(1) (2003). The children have
been in foster care for a significant part of their childhood, and Dr. Gentry testified that it would not
be harmful to the children to break the maternal bond because their relationship with Mother was
intermittent anyway. Tenn. Code Ann. § 36-1-113(i)(4) (2003). Several witnesses testified that,
since being placed in foster care, the children have improved emotionally, physically, and
academically. Tenn. Code Ann. 36-1-113(i)(5) (2003). Mother admitted to striking her oldest
daughter, and Mr. Freiden testified that B.J.B. called him on two occasions to report that Mother hit
her. In addition, Mother admitted to being involved in a domestic violence incident with her
boyfriend. Tenn. Code Ann. § 36-1-113(i)(6) (2003). Finally, as more fully demonstrated supra,
Mother’s mental status would be detrimental to the children to the extent it prevents her from
providing a safe, nurturing environment for these children. Tenn. Code Ann. § 36-1-113(i)(8)
(2003). Accordingly, we find the chancery court did not err in finding termination of Mother’s
parental rights to be in the childrens’ best interest.
IV.
DEFAULT JUDGMENT AGAINST FATHERS
In her final issue raised on appeal, Mother alleges the trial court erred by granting DCS a
default judgment against Father and any unknown fathers, thereby wrongfully terminating their
parental rights. Mother cites to Rule 55.01 of the Tennessee Rules of Civil Procedure requiring
written notice of an application for default judgment. Tenn. R. Civ. P. 55.01 (2003). Since Mother
suffered no injury as a result of the trial court’s terminating the parental rights of Father and any
unknown fathers by default judgment, Mother lacks standing to contest this issue on appeal. See
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State v. Demarr, No. M2002-02603-COA-R3-JV, 2003 Tenn. App. LEXIS 569, at *39 (Tenn. Ct.
App. Aug. 13, 2003); In re Estate of Price, No. M2002-00332-COA-R3-CV, 2002 Tenn. App.
LEXIS 931, at *6–8 (Tenn. Ct. App. Dec. 31, 2002); In re Adoption of M.J.S., 44 S.W.3d 41, 58
(Tenn. Ct. App. 2000). Accordingly, this issue is without merit.
V.
CONCLUSION
For the reasons set forth herein, we affirm the chancery court’s decision to terminate the
parental rights of Dale Baruchman to her two minor children. Costs of this appeal are to be taxed
against the Appellant, Dale Baruchman, for which execution may issue if necessary.
___________________________________
ALAN E. HIGHERS, JUDGE
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