State of Tennessee, Department of Children's Services v. K.L.K.

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs May 22, 2004
STATE OF TENNESSEE, DEPARTMENT OF
CHILDREN'S SERVICES v. K.L.K.
Appeal from the Juvenile Court for Hamilton County
No. 181,005 Suzanne Bailey, Judge
No. E2003-2452-COA-R3-PT Filed July 6, 2004
This appeal by K.L.K. (“Mother”) challenges the Juvenile Court’s conclusion that there was clear
and convincing evidence to terminate Mother’s parental rights on three statutory grounds, and further
challenges that there was clear and convincing evidence that termination of Mother’s parental rights
was in her daughter’s best interest. We conclude there was no clear and convincing evidence to
terminate Mother’s parental rights on two of the three grounds relied upon by the Juvenile Court, but
that there was clear and convincing evidence to support the third ground. However, we also
conclude there was no clear and convincing evidence that termination of Mother’s parental rights
was in the best interest of the child. The judgment of the Juvenile Court is, therefore, reversed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the
Juvenile Court Reversed; Case Remanded
D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and
CHARLES D. SUSANO , JR., J., joined.
Cara C. Welsh, Chattanooga, Tennessee, for the Appellant K.L.K.
Paul G. Summers, Attorney General and Reporter, and Douglas Earl Dimond, Assistant Attorney
General, Nashville, Tennessee, for the Appellee State of Tennessee, Department of Children’s
Services.
OPINION
Background
This litigation began on October 26, 2000, when the State of Tennessee, Department
of Children’s Services (“DCS”) filed a Petition for Temporary Custody of L.L.M. (“the child”),
Mother’s then eight year old daughter. The child had been living with Mother for the past two years
even though the child’s paternal grandmother had legal custody. In the petition, DCS alleged that
the child was the victim of physical abuse and possible neglect by Mother. According to DCS, the
child had bruises on her legs and upper thighs, as well as a mark under an eye. DCS sought
immediate temporary custody because it believed the child was subject to immediate harm if she
remained with Mother. Temporary custody was granted to DCS and a preliminary hearing was set
for October 31, 2000. Mother retained counsel who had the hearing continued until November 2,
at which time Mother waived her right to a preliminary hearing. The Referee determined that
custody of the child should remain with DCS.
A Permanency Plan (“the Plan”) was developed on November 20, 2000, with the
stated goal of eventually returning custody of the child to Mother. The Plan required Mother to
obtain a parenting assessment and, if necessary, attend parenting classes. Mother also was required
to undergo a psychological assessment as well as a drug and alcohol assessment. The Plan noted that
Mother would be required to demonstrate the ability to use constructive discipline with appropriate
boundaries with such discipline not rising to the level of physical or emotional abuse. Mother was
prohibited from using illegal drugs or alcohol and misusing prescription medication. Mother was
instructed to pay child support as required by the State. Mother signed the Plan as well as a four
page document setting forth when parental rights can be terminated involuntarily under applicable
law. The Plan was approved by the Referee in December of 2000.
A status report was filed with the Juvenile Court in April of 2001 which showed that
Mother was making a good faith effort to comply with the requirements of the Plan. For example,
she had completed parenting and anger management classes. Mother underwent a drug and alcohol
assessment and a drug test which was negative. Mother was attending counseling. She also was
attending scheduled visitation with her daughter and was informing DCS when she would be unable
to attend.
In May of 2001, a case assessment was undertaken to determine if unsupervised
visitation was appropriate. The conclusions in this report were somewhat inconsistent with the April
status report and indicated that Mother had not completed the parenting assessment or psychological
assessment called for in the Plan. While Mother was going to counseling, there were no reports in
the record which indicated the focus of the counseling and Mother’s degree of success. It also was
noted that the DCS case manager had failed to engage the child in counseling. DCS also had been
requested to seek flex funds to assist Mother in paying for the parenting assessment, but the record
did not show whether this had been initiated by DCS. Because of these deficiencies, the DCS Team
Coordinator was unable to recommend unsupervised visitation. A further problem arose in June of
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2001 when Mother and the child’s paternal grandmother took the child out of Tennessee on two of
the weekend visits. When DCS discovered the child had been taken out of the state, weekend
visitation was stopped.
DCS eventually was able to obtain the funding for Mother to undergo a parenting and
psychological assessment. The evening prior to the scheduled appointment, Mother called and
cancelled. Mother failed to inform DCS that she had cancelled the appointment and failed to seek
rescheduling. At this point in time, it was noted that Mother was beginning to show signs of being
noncompliant with the requirements of the Plan.
A parenting and personality assessment eventually was undertaken in July of 2001.
The examiner concluded that unless “the Court has evidence to the contrary, the results of this
evaluation indicate no reason that [the child] should not be returned to the mother’s custody” so long
as she complies with any DCS requirements. The examiner recommended a transition plan which
included Mother working with a child specialist to assist Mother in learning behavior modification
techniques. The examiner also recommended joint counseling with Mother and the child, as well
as a graduated visitation schedule, beginning with 1 to 2 days per week, then progressing to 3 days,
etc.
In August of 2001, Mother’s attorney was allowed to withdraw from representation.
By September of 2001, Mother apparently was back on track as to completing the requirements of
the Plan. An interim status report filed with the Juvenile Court indicates Mother completed the
parenting classes, the anger management classes, the drug and alcohol assessment, and the parenting
or psychological assessment. Mother was attending scheduled visitation with the child and informed
DCS on those occasions when she was unable to attend. Mother was employed and was living in
an apartment. Although Mother was not attending counseling due to a lack of funds, she
nevertheless was showing improvement in her parenting skills.
In December of 2001, the DCS case manager recommended increased and
unsupervised visitation between Mother and her daughter. At that time Mother was employed and
maintaining a residence. The DCS case manager noted that Mother had “completed the tenets of her
previous plan, and is cooperating with DCS to get her child returned.” A second Permanency Plan
was developed at that same time. The second Plan likewise had the stated goal of returning custody
of the child to Mother. This Plan required Mother to be present for all scheduled visits and to be
prepared for these visits. Mother also was required to continue with counseling to help address
issues of trust and any problems that may arise during the reunification process. It also was noted
that in-home services would be provided upon reunification. This Plan did not state that Mother was
required to pay child support, but it did indicate that issues surrounding the entry of a child support
order had been postponed until January of 2002.
A hearing was held in December of 2001 to review the status of the need for foster
care and Mother’s progress. Subsequently, the Referee entered an order approving DCS’s stated
intent of reuniting Mother and child. According to the Referee, this was appropriate and “in the
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child’s best interest in that the mother has substantially complied with her permanency plan and is
currently participating in counseling with [the child] and progress has been reported.”
An interim status report from April of 2002 indicated that Mother had changed jobs
twice since the last court review. Mother also was having difficulty attending the counseling
sessions. It was noted that while Mother needed to achieve more stability and demonstrate an ability
to take care of all the responsibilities of being a parent, the reunification process would continue.
That same month, an order of support was entered by the Juvenile Court. Specifically, Mother was
ordered to pay $83 per week in child support payments. A judgment for retroactive child support
also was entered against Mother in the amount of $3,403. Mother was ordered to pay $41 per week
toward the arrearage.
To summarize the facts up to this point, by April of 2002, Mother had completed the
requirements of the initial Plan and was moving forward with the requirements of the second Plan
and the reunification process. Mother’s visitation had been increased, and she was enjoying weekly
unsupervised visits for as long as four days at a time. Mother’s progress was acknowledged by DCS
as well as the Referee.
What happened next was in dispute at trial. Mother’s daughter was staying with her
four days per week and Mother was supposed to take her daughter to the foster parents on Sunday
evening. Mother testified that while exercising visitation in early June, she became “awful sick” and
was unable to return her daughter to the foster parents. Mother stated that she called and left
messages with the DCS case manager and the foster parents to explain the situation and inform them
that she would take her daughter to the day camp program the following morning. Mother claims
that the next morning, DCS informed her that if she did not return her daughter immediately she
would be arrested. According to Mother, the next time she spoke with the DCS case worker, the
DCS case worker was “very rude” and told Mother she was going to stop her visitation with the
child. Mother claims the DCS case worker said she “was done trying” to help Mother, that DCS was
going to terminate her parental rights, and the case “was over.” Mother stated she felt like she just
“couldn’t win.” Mother was devastated because she had “worked so hard” and her daughter “was
almost home.”
Mother testified that after the above conversation with the DCS case worker, she went
“off the deep end” and began drinking and using drugs. This set-back was significant, eventually
culminating in Mother’s arrest in August for switching tags on a car, having no proof of insurance,
and allowing someone to drive her car while under the influence. Mother was incarcerated for 22
days. Mother eventually entered a treatment facility in early October. While in the treatment
program, Mother wrote her daughter a letter. In this letter, she stated that she wanted to do better,
but had been unable to quit drinking and using drugs. Mother also went on to explain in the letter
that she had entered a treatment program to teach her not to drink and use drugs, which would make
her a better “momma” and a better “person.” Mother expressed her continuing love to her daughter
and her desire to be a good mother. This letter was mailed to the DCS case worker to be forwarded
to the child. However, the DCS case manager never gave the letter to the child.
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On January 28, 2003, DCS filed a Petition to Terminate Parental Rights. DCS
alleged, among other things, that: 1) the child had been removed from the home for at least six
months and the conditions which led to her removal persisted; 2) there was little likelihood that these
conditions would be remedied at an early date which would permit a safe return of the child to the
Mother; 3) Mother was unable to provide a suitable home for the child and has made no reasonable
efforts to provide a suitable home; and 4) continuation of the parent/child relationship would greatly
diminish the child’s chances of early integration into a safe, stable and permanent home. DCS also
alleged there had not been substantial compliance by Mother with the Plan, and that Mother had
willfully abandoned the child by failing to visit or engaging in token visitation with the child for
more than four consecutive months preceding the filing of the petition. Finally, DCS alleged it
would be in the best interests of the child for Mother’s parental rights to be terminated. At the time
the petition was filed, DCS did not know the whereabouts of Mother. On February 28, 2003, Mother
was appointed counsel after signing an Affidavit of Indigency which indicated she was unemployed
at that time.
The trial was on July 18, 2003.1 The first witness was Jennifer Collins (“Collins”),
who is employed in the child support division of the Hamilton County Juvenile Court Clerk’s Office.
Collins testified that a child support order was entered on April 10, 2002, requiring Mother to pay
child support of $83 per week and an additional $41 per week on arrearages. Since the order was
signed, Mother had not paid any child support. The records reflect that Mother was not present at
this earlier hearing, although she had been served with documents informing her that a hearing was
going to be held regarding child support payments.
The next witness was Mother, who by then was living in Trenton, Georgia. Mother
had lived there for approximately five months. Mother acknowledged that she has had several
residences over the past couple of years. Mother currently lives with her former husband, Andy
Crisp (“Mr. Crisp”). Mother and Mr. Crisp “got back together” right before Mother was admitted
to the treatment center. Mr. Crisp drove Mother to that facility located in North Carolina.
Mother testified that despite the significant set-back she experienced beginning in
June of 2002, she was currently in a position to be able to provide for her daughter. Mother and Mr.
Crisp were both employed. Mother and Mr. Crisp live in a two story house, with three bedrooms,
two full baths, a living room, dining room, and a swimming pond with a gazebo. There is a bedroom
ready for her daughter. Mother stated that while in the treatment center, she had to learn a new
lifestyle. She attends Narcotics Anonymous meetings twice a week and reads from her Alcoholics
Anonymous book everyday. Mother testified that she also has a job, tends to the house, and goes
to church. Mother denied taking any drugs from the time DCS initially took custody of her daughter
up until the time when everything “fell apart” in June of 2002. By the time of trial, Mother had been
1
W e will limit our discussion of trial testimony to the extent it supplements or explains facts already discussed
or provides additional information. W e will not discuss trial testimony to the extent such testimony simply restates the
chronology of events already set forth in the Opinion.
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clean and sober for approximately nine months. When asked by the State’s attorney if Mother
believed her daughter should be returned home, the following discussion took place:
A. I sure am. I am. I am telling you that right now that she
should come home. She should have already been home, sir.
… I have completed two of your permanency plans.
Q. All right. You are telling the Court that you are in a complete
and full position to be a full-time parent to your child?
A. Full-time. Take her to school, pick her up, everything. Buy
her school clothes, feed her, everything.
Q. And some little stress is not going to send you back over the
edge to drugs and alcohol? …
A. No, not if I don’t let it.
Mother admitted she has paid absolutely no child support since the child came into
custody of DCS. When asked why she did not pay any child support, Mother responded, “I don’t
know.” Mother was employed at various different jobs while her daughter was in DCS custody.
Although Mother did not make much money at these various jobs, she admitted she could have paid
at least something. According to Mother, she did receive a copy of the notice of the child support
hearing, but she was unable to attend the hearing and did not receive the actual order requiring her
to pay child support. Mother later testified that had she received the order, she would have paid child
support. When the order was entered in April of 2002, Mother was supposed to have custody of her
daughter returned to her in the very near future and she would have wanted to do “the right thing.”
Mother hired an attorney when her daughter was taken into state custody. However,
Mother could not afford to pay the attorney, who subsequently withdrew from representation after
only a few months. Mother recalls the Referee permitting her attorney to withdraw from
representation. Mother testified she never was asked by the Referee, the Juvenile Court Judge, or
anyone else whether she still needed representation or was going to try to obtain another attorney.
Mother testified as follows with regard to a conversation between her and the State’s attorney
following the December 2001 hearing:
Q. Do you remember the conversation we had outside the
courtroom for about twenty minutes after that [hearing]?
A. You can refresh my memory but, no, I do not.
Q. Do you remember my asking the Judge to appoint you counsel
during that hearing?
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A. No, I do not.
Q. Do you remember the Judge stating, even though it’s not in
the order, that because you were about to get your child back,
you didn’t think it was necessary at that time?
A Yes, and I believed him.
Mother has not visited with her daughter since June of 2002 when she claims DCS stopped allowing
her any visitation. Mother was not represented by an attorney when all visitation with her daughter
allegedly was stopped in June of 2002.
The next witness was Lisa Newcombe (“Newcombe”), the DCS case worker assigned
to this case. Newcombe took over responsibility for this case in April of 2002. Newcombe testified
that when she took over this case, Mother was doing well. Mother had extended visits, picked up
her daughter every day after school, and even went on a field trip with her daughter. Mother had
completed all the classes and various assessments called for in the Plans. The drug and alcohol
assessment completed in 2001 indicated that no treatment was needed.
With regard to the incident where Mother did not return the child to the foster parents
on Sunday evening, Newcombe testified that she received a call the following Monday from the
foster parents saying the child had not been returned. When Newcombe was unable to get in touch
with Mother, she called the Court to ascertain what to do. Newcombe was able to contact Mother
around 9:30 a.m., and told her to immediately take the child to day care and then come to her (i.e.
Newcombe’s) office. Mother took the child to the day care, but did not go to Newcombe’s office.
Newcombe testified that she tried for several days to contact Mother and, when she was
unsuccessful, she sent Mother a certified letter to her last known address. According to Newcombe,
Mother called her a couple of days later and inquired “when she was going to see [her daughter]
again and I told her that the next visit had to be supervised so we could discuss what happened.”
Mother admitted to Newcombe that she had taken her daughter to Georgia again. Newcombe
testified that she once again asked Mother to come to the DCS office to discuss the situation.
Mother claimed she did not have a car or anyone to take her. Newcombe did not hear from Mother
again until February of 2003, at which time Mother stated she wanted to visit her daughter.
Newcombe informed her that a petition to terminate her parental rights had been filed and visitation
was no longer allowed. Newcombe is not aware of Crisp’s background, and the house/home
environment where Mother and Crisp are now living has not been investigated. Newcombe testified
that the child needs stability and permanency, and she did not see that happening with Mother.
On cross-examination, Newcombe testified that it had been her intent to divest DCS
of custody of the child at a hearing that was scheduled in July 25, 2002. Approximately May 3,
2002, the child’s foster parent became angry about the reunification process because the foster parent
did not believe it was the appropriate time for the child to be returned to Mother. The foster parent
refused to continue being a foster parent to the child, thus requiring DCS to secure new foster
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parents. A second problem arose in mid-May of 2002 when, apparently due to Mother’s inattention,
the child turned in a school project late. DCS had discussed the project with Mother and went over
what needed to be done so the project would be completed in a timely manner. According to
Newcombe’s notes, “this lack of effort was not going to be a good indication of [Mother’s] ability
to help [the child] with her work in the future. [Mother] was told that this was her last chance and
if she did not do everything she was supposed to do in the time between now and court, the situation
would turn toward termination.” Three days later the school project was turned in, albeit late. The
child’s teacher then asked Mother to help transport some of the school children to a skating party the
following Thursday, and Mother agreed to do so.
The incident where Mother returned the child a day late occurred on June 3, 2002.
The DCS case notes discussing what happened on June 3rd confirm that Mother did call the foster
parents and left a message informing them that she would take the child to day camp the following
day. Mother did tell Newcombe that the reason she did not return the child on time was because she
was sick. According to the DCS case notes, Newcombe then told Mother that her visits were
“suspended.”2 Thereafter, Mother also informed Newcombe that she was in the process of moving
to Georgia. Newcombe informed Mother that the new home would have to be investigated before
the child could be taken there. The DCS notes also state the following: “Steve Jones called
regarding [the child] and [Mother] not bringing [the child] back to the foster home on time. Mr.
Jones stated that termination would be considered seriously after this matter.” Newcombe
acknowledged at trial that, prior to the June 3rd incident, there had been “no major problems” with
Mother returning her child to the foster parents on time. On June 13th, Newcombe spoke to the
child’s counselor who informed Newcombe that termination of Mother’s parental rights would harm
the child “in a large way.” When Mother subsequently ceased contact with DCS, the counselor
indicated at that time that it was best to move forward with the termination process.
On September 4, 2003, the Juvenile Court entered an Order terminating Mother’s
parental rights. The Juvenile Court found:
1. The child has been in DCS custody for at least six months;
DCS has made reasonable efforts to assist Mother in
establishing a suitable home; that Mother has not made a
reasonable effort to do so; and that Mother has demonstrated
a lack of concern to such a degree that it appeared unlikely
she would be able to provide a suitable home at an early date.
The Juvenile Court did note that prior to June of 2002,
Mother had made a reasonable effort, but ceased all efforts
after that date;
2
Although contrary to the case notes, Newcombe testified that Mother’s visitation had not been suspended, but
rather her visits were to be supervised. Newcombe testified that Mother’s visitation was not actually “suspended” until
July after M other had ceased contact with DCS and the child.
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2. There was little likelihood that the conditions preventing
return of the child to Mother would be remedied at an early
date;
3. Continuation of the parent/child relationship greatly
diminishes the child’s chances of early integration into a
stable and suitable home;
4. Mother failed to comply in a substantial manner with the
responsibilities of the foster care Plan by ceasing contact with
DCS since June of 2002, and Mother has failed to maintain
suitable housing for herself and the child;
5. Mother willfully abandoned the child for more than four
consecutive months preceding the filing of the petition;
6. Mother failed to make any adjustment of circumstances to
make it safe and in the child’s best interests to be returned to
her care; and
7. It was in the best interest of the child for Mother’s parental
rights to be terminated.
Mother appeals claiming there was no clear and convincing evidence to terminate her
parental rights. Mother also claims there was no clear and convincing evidence to support a finding
that termination of Mother’s parental rights was in the best interest of the child. Finally, Mother
claims she was denied adequate counsel pursuant to Tenn. R. Juv. P. 39 and Rule 13 of the
Tennessee Supreme Court.
Discussion
The factual findings of the Trial Court are accorded a presumption of correctness, and
we will not overturn those factual findings unless the evidence preponderates against them. See
Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). With respect to legal
issues, our review is conducted “under a pure de novo standard of review, according no deference
to the conclusions of law made by the lower courts.” Southern Constructors, Inc. v. Loudon County
Bd. Of Educ., 58 S.W.3d 706, 710 (Tenn. 2001). As discussed by this Court in In re Adoption of
T.A.M., No. M2003-02247-COA-R3-CV, 2004 Tenn. App. LEXIS 317 (Tenn. Ct. App. May 12,
2004):
Because of the heightened burden of proof required by Tenn.
Code Ann. § 36-1-113(c), we must adapt Tenn. R. App. P. 13(d)'s
customary standard of review for cases of this sort. First, we must
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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
grounds for terminating the biological parent's parental rights. Jones
v. Garrett, 92 S.W.3d at 838; In re Valentine, 79 S.W.3d at 546; 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 Adoption of T.A.M., 2004 Tenn. App. LEXIS 317, at ** 8-9 (footnote omitted).3
In Dep't of Children's Servs. v. D.G.S.L., this Court discussed the relevant burden of
proof in cases involving termination of parental rights. Specifically, we observed:
It is well established that “parents have a fundamental right to
the care, custody, and control of their children." In re Drinnon, 776
S.W.2d 96, 97 (Tenn. Ct. App. 1988) (citing Stanley v. Illinois, 405
U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972)). "However, this
right is not absolute and parental rights may be terminated if there is
clear and convincing evidence justifying such termination under the
applicable statute." Id. (citing Santosky v. Kramer, 455 U.S. 745, 102
S. Ct. 1388, 71 L. Ed. 2d 599 (1982)).
Termination of parental or guardianship rights must be based
upon a finding by the court that: (1) the grounds for termination of
parental or guardianship rights have been established by clear and
convincing evidence; and (2) termination of the parent's or guardian's
rights is in the best interests of the child. Tenn. Code Ann.
§ 36-1-113(c). Before a parent's rights can be terminated, it must be
shown that the parent is unfit or substantial harm to the child will
result if parental rights are not terminated. In re Swanson, 2 S.W.3d
180, 188 (Tenn. 1999); In re M.W.A., Jr., 980 S.W.2d 620, 622
(Tenn. Ct. App. 1998). Similarly, before the court may inquire as to
whether termination of parental rights is in the best interests of the
child, the court must first determine that the grounds for termination
have been established by clear and convincing evidence. Tenn. Code
Ann. § 36-1-113(c). This Court discussed the "clear and convincing
3
W hen this Opinion was released, the time in which to file a Rule 11 application for permission to appeal to
the Tennessee Supreme Court in In re Adoption of T.A.M. had not yet expired.
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evidence" standard in O'Daniel v. Messier, 905 S.W.2d 182 (Tenn.
Ct. App. 1995), as follows:
The "clear and convincing evidence" standard
defies precise definition. Majors v. Smith, 776
S.W.2d 538, 540 (Tenn. Ct. App. 1989). While it is
more exacting than the preponderance of the evidence
standard, Santosky v. Kramer, 455 U.S. at 766, 102 S.
Ct. at 1401; Rentenbach Eng'g Co. v. General Realty
Ltd., 707 S.W.2d 524, 527 (Tenn. Ct. App. 1985), it
does not require such certainty as the beyond a
reasonable doubt standard. Brandon v. Wright, 838
S.W.2d 532, 536 (Tenn. Ct. App. 1992); State v.
Groves, 735 S.W.2d 843, 846 (Tenn. Crim. App.
1987).
Clear and convincing evidence eliminates any
serious or substantial doubt concerning the
correctness of the conclusions to be drawn from the
evidence. See Hodges v. S. C. Toof & Co., 833
S.W.2d 896, 901 n. 3 (Tenn. 1992). It should produce
in the fact-finder's mind a firm belief or conviction
with regard to the truth of the allegations sought to be
established. In re Estate of Armstrong, 859 S.W.2d
323, 328 (Tenn. Ct. App. 1993); Brandon v. Wright,
838 S.W.2d at 536; Wiltcher v. Bradley, 708 S.W.2d
407, 411 (Tenn. Ct. App. 1985)...
Dep't of Children's Servs. v. D.G.S.L., No. E2001-00742-COA-R3-JV, 2001 Tenn. App. LEXIS 941,
at **16-18 (Tenn. Ct. App. Dec. 28, 2001), no appl. perm. appeal filed.
Termination of parental rights may be based upon a number of statutory grounds. As
relevant to this appeal, the statutory provisions provide that parental rights can be terminated for the
following reasons:
(1) Abandonment by the parent or guardian, as defined in § 36-1-
102, has occurred;
(2) There has been substantial noncompliance by the parent or
guardian with the statement of responsibilities in a permanency plan
or a plan of care pursuant to the provisions of title 37, chapter 2, part
4;
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(3)(A) The child has been removed from the home of the parent or
guardian by order of a court for a period of six (6) months and:
(i) The conditions which led to the child's removal or other
conditions which in all reasonable probability would cause the child
to be subjected to further abuse or neglect and which, therefore,
prevent the child's safe return to the care of the parent(s) or
guardian(s), still persist;
(ii) There is little likelihood that these conditions will be
remedied at an early date so that the child can be safely returned to
the parent(s) or guardian(s) in the near future; and
(iii) The continuation of the parent or guardian and child
relationship greatly diminishes the child's chances of early integration
into a safe, stable and permanent home.
Tenn. Code Ann. §§ 36-1-113(g)(1) through (g)(3) (Supp. 2003). Tenn. Code Ann. § 36-1-102
(1)(A)(i) defines “abandonment” as follows:
For a period of four (4) consecutive months immediately preceding
the filing of a proceeding or pleading to terminate the parental rights
of the parent(s) or guardian(s) of the child who is the subject of the
petition for termination of parental rights or adoption, that the
parent(s) or guardian(s) 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….
In the present case, the Juvenile Court found there was clear and convincing evidence
that the statutory grounds for termination in Tenn. Code Ann. §§ 36-1-113(g)(1) through (g)(3) had
been met. Clear and convincing evidence supporting any single ground will support a termination
order. See In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
Although the Juvenile Court did not state in its final judgment the exact reason it
found Mother had abandoned the child, based on comments made by the Juvenile Court in
announcing its decision after closing argument was completed, it appears that the Juvenile Court
based this determination on Mother’s failure to pay any child support. In the State’s brief on appeal,
its argument is limited to whether Mother willfully failed to support her daughter for the relevant
four month period. Accordingly, we conclude that the Juvenile Court determined Mother had
abandoned the child by willfully failing to support her.
The facts are undisputed that the child support order was entered in April of 2002 and
Mother has paid no child support since that time. Mother claims she did not receive a copy of the
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order, although she did receive a copy of the notice setting the matter for hearing. Thus, at the very
least, Mother knew a hearing regarding the entry of a child support order was imminent. Even if
Mother did not receive the actual order, we believe she was responsible for ascertaining whether and
when such an order was entered.
The petition to terminate Mother’s parental rights was filed on January 28, 2003.
Thus, as correctly pointed out by the State in its brief, the relevant statutory time period for
ascertaining whether Mother abandoned her daughter is from September 28, 2002, through January
27, 2003. It is important to note that in making this analysis, “only a parent’s conduct in the four
months immediately preceding the filing of a petition then before the court may be used as grounds
to terminate parental rights” under this statutory section. See In re D.L.B., 118 S.W.3d 360, 366
(Tenn. 2003). Approximately two weeks into the relevant four month period, Mother entered a
treatment facility located in North Carolina. Although the record is unclear how long Mother
remained at the treatment facility, based on the testimony of the child’s maternal grandmother,
Mother was at this facility for almost three months. At trial, the State introduced no proof that
Mother was working or was able to work during the time she was at the treatment facility.
Our Tennessee Supreme Court had held that an “element of intent must also be
applied to the definition of abandonment….” In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003)(citing
In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999)). Relying on the intent requirement, this Court held
that abandonment was not the proper basis to terminate parental rights when the parent was
incarcerated during the four month relevant period. Specifically, in In re T.L.P., No. W1999-01940-
COA-R3-CV, 2001 Tenn. App. LEXIS 638 (Tenn. Ct. App. Aug. 22, 2001), appl. perm. appeal
denied Jan. 14, 2002, we stated as follows:
The petition for termination of parental rights was filed on August 26,
1998. Ms. Henderson was incarcerated from June 2, 1997 until May
19, 1999. Because Ms. Henderson was incarcerated during the four
months immediately preceding the filing of the petition, we find the
element of intent lacking in Ms. Henderson's failure to visit and/or
support the children. Absent intent, we cannot uphold the termination
of Ms. Henderson's parental rights on the ground of abandonment
under the standard articulated by the Swanson court. Accordingly, we
find that the trial court erred by terminating Ms. Henderson's parental
rights on the ground of abandonment.
In re T.L.P., 2001 Tenn. App. LEXIS 638, at **12, 13.
In the present case, there is no proof at all that Mother actually was working or
capable of working while she was in the treatment facility, and there is no proof that she otherwise
had the resources with which to pay the ordered child support. We acknowledge that Mother was
in the treatment facility as a result of her own voluntary drug and alcohol use. At the same time,
however, public policy certainly is to encourage parents with drug and/or alcohol problems to seek
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necessary treatment or otherwise take action to address that situation. We do not intend to imply that
a parent’s child support obligation is automatically suspended simply because he or she enters a
treatment program to address a drug or alcohol problem. However, absent proof that the parent
either was working, was capable of working, or otherwise had resources to pay child support while
in the treatment program, we do not believe the necessary intent not to pay child support is present.
Since this proof was lacking altogether in this case, we conclude that the Juvenile Court erred when
it concluded the evidence was clear and convincing that Mother had abandoned the child because
she willfully failed to pay child support for the four month period immediately preceding the filing
of the petition.
In its final judgment, the Juvenile Court indicated that termination of Mother’s
parental rights also was proper on two other grounds, those being the grounds set forth in Tenn. Code
Ann. § 36-1-113(g)(2) and (g)(3), supra. There appears to be some disagreement between the parties
as to which of these two grounds actually was relied upon by the Juvenile Court when discussing its
findings of fact. Mother claims the Juvenile Court held that her parental rights should be terminated
for substantial noncompliance with the Plan pursuant to § 36-1-113(g)(2). On the other hand, the
State argues that the Juvenile Court concluded termination of Mother’s parental rights was proper
pursuant to § 36-1-113(g)(3). When discussing its factual findings, the Juvenile Court paid
particular attention to what it determined was Mother’s current inability to take care of her daughter.
The Juvenile Court also noted that while Mother had at one time substantially complied with the
terms of the Plans, that all fell apart after June of 2002.
The record shows it is true that prior to June of 2002, Mother had substantially
complied with the Plans. Although the facts are somewhat in dispute regarding exactly what
happened and what was said after the June 3rd incident when Mother was late returning the child to
the foster parents, the proof is nonetheless clear that Mother encountered a significant setback.
When ascertaining whether there was clear and convincing evidence to terminate Mother’s parental
right for either or both of the grounds contained in §§ 36-1-113(g)(2) and (g)(3), we are not limited
to the four month period immediately preceding the filing of the petition, as is the case with
abandonment. By the time of trial, Mother had been clean and sober for nine months. She had
established a residence and was working. Unfortunately, as a home study had not been undertaken,
we do not know whether Mother’s residence was suitable for the child. The record also reveals very
little about Crisp and nothing about whether his presence in the home would affect its suitability for
the better or for the worse.
After reviewing the record as a whole, we believe there is clear and convincing
evidence that certain “other conditions” existed at the time of trial which prevented the Juvenile
Court from being able to conclude that Mother was in a position at that time to fully and competently
care for the child, and that there was a post-June 2002 failure to substantially comply with the
requirements of the second Plan as a whole. Our concern surrounds the Juvenile Court’s apparent
conclusion that there was little likelihood that Mother had remedied or could remedy these
conditions in the near future, which is a requirement to terminate parental rights pursuant to§ 36-1-
113(g)(3). If Mother’s situation had been frozen in time and her overall situation at the time of trial
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was the same as it had been when the petition was filed, we would be more inclined to agree with
the Juvenile Court’s conclusion. However, this would require that we completely subjugate the
substantial progress Mother made prior to June 2002 and the progress she made after entering
treatment a few months later on October 8th to the negative impact of what happened during her set-
back. This we are not prepared to do. Therefore, while we affirm the Juvenile Court’s conclusion
that grounds existed pursuant to § 36-1-113(g)(2) for failure to substantially comply with the Plan,
we reverse the Juvenile Court’s determination that grounds existed pursuant to § 36-1-113(g)(3).
Having affirmed the Juvenile Court’s conclusion that grounds existed pursuant to
§ 36-1-113(g)(2), we now turn to whether termination of Mother’s parental rights was in the best
interest of the child. Tenn. Code Ann. § 36-1-113(i) describes the standard for determining whether
termination is in the best interests of the child in such cases:
(i) In determining whether termination of parental or guardianship
rights is in the best interest of the child pursuant to this part, the court
shall consider, but is not limited to, the following:
(1) Whether the parent or guardian has made such an
adjustment of circumstance, conduct, or conditions as to make it safe
and in the child's best interest to be in the home of the parent or
guardian;
(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;
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(7) Whether the physical environment of the parent's or
guardian's home is healthy and safe, whether there is criminal activity
in the home, or whether there is such use of alcohol or controlled
substances as may render the parent or guardian consistently unable
to care for the child in a safe and stable manner;
(8) Whether the parent's or guardian's mental and/or
emotional status would be detrimental to the child or prevent the
parent or guardian from effectively providing safe and stable care and
supervision for the child; or
(9) Whether the parent or guardian has paid child support
consistent with the child support guidelines promulgated by the
department pursuant to § 36-5-101.
Tenn. Code Ann. § 36-1-113(i) (Supp. 2003).
Since the best interest determination requires a separate analysis, the existence of
grounds to terminate parental rights does not automatically mean that termination of parental rights
is in the best interest of the child. See e.g., In re D.I.S., No. W2000-00061-COA-R3-CV, 2001 Tenn.
App. LEXIS 358 (Tenn. Ct. App. May 17, 2001), no appl. perm. appeal filed, (affirming trial court’s
conclusion that, while there was clear and convincing evidence of grounds to terminate parental
rights, there was no clear and convincing evidence that such termination was in the best interest of
the child). In the present case, the Juvenile Court concluded that Mother had not made such an
adjustment of circumstance, conduct, or conditions as to make it safe and in the child's best interest
to be returned to her and that she was unable to effect a lasting adjustment after reasonable efforts
by available social services agencies.
In many of the cases when DCS has been awarded temporary custody of a child, DCS
is able to work with the parents and, over time, custody of the child is returned to the parents when
it is safe to do so. These situations, of course, never reach this Court. For those cases that do reach
this Court, it is difficult to imagine a case which has more at stake than that of parents who have
forever lost their rights to their child. Because of the very nature of these proceedings, as discussed
previously, there is a heightened burden of proof on the State as well as federal and state constitution
protections.
The specific question as to this issue that had to be answered by the Juvenile Court
and by this Court on appeal is whether the evidence contained in the record was clear and convincing
that termination of Mother’s parental rights to this child was in the best interest of this child at the
time of trial. We have reviewed the record in its entirety and conclude there was no clear and
convincing evidence that termination of Mother’s parental rights was in the best interests of the
child. In reaching this conclusion, we do not intend to minimize the seriousness of Mother’s post-
June 3rd conduct. However, prior to this set-back, Mother had made significant progress by having
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essentially completed two permanency plans, and was literally on the verge of regaining custody.
She was exercising unsupervised visitation for as many as four days per week and certainly had a
meaningful relationship with her daughter. Beginning in October of 2002, Mother went into a
treatment program and began taking steps available to her to help reduce and, hopefully, eliminate
the negative consequences of her post-June 3rd behavior. By the time of trial, Mother had been clean
and sober for nine months, she had established a residence with a bedroom set up and waiting for
her daughter, and she was gainfully employed. This is not a case of “too little, too late,” as was the
situation in D.G.S.L., supra, wherein the mother admitted she was a drug addict and, at the time of
trial, had been “clean” for only one week. 2001 Tenn. App. LEXIS 941, at *9. We are unable to
conclude that, at the time of trial, it did not appear reasonably possible that Mother would be able
to make a lasting adjustment of circumstances or conditions such that it would be safe and in the
child’s best interests to be returned to Mother’s care. Considering the other pertinent factors
contained in Tenn. Code Ann. § 36-1-113(i) and the facts of this case as a whole, we conclude there
was no clear and convincing evidence that it was in the best interest of the child to terminate
Mother’s parental rights at that time.
In light of our conclusion, we pretermit Mother’s argument that she was denied
counsel pursuant to Tenn. R. Juv. P. 39 and Rule 13 of the Tennessee Supreme Court. The Final
Judgment of the Juvenile Court is reversed. On remand, DCS is instructed to develop a new
Permanency Plan consistent with Mother’s and the child’s current situation.
Conclusion
The Judgment of the Juvenile Court is reversed, and this cause is remanded to the
Juvenile Court for further proceedings consistent with this Opinion and for collection of the costs
below. The costs on appeal are assessed against the Appellee State of Tennessee, Department of
Children’s Services.
___________________________________
D. MICHAEL SWINEY, JUDGE
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