In the Matter of J.L.E.

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
February 10, 2005 Session
IN THE MATTER OF J. L. E.
Appeal from the Juvenile Court for White County
No. JU1599; F2186 Sam Benningfield, Jr., Judge
No. M2004-02133-COA-R3-PT - Filed June 30, 2005
This is a mother’s appeal of the termination of her parental rights to her son. After the Tennessee
Department of Children’s Services took custody of her son, it prepared a permanency plan requiring
Mother to obtain therapy and case management services and perform other remedial tasks within
approximately twelve months. After only six months, however, the Department filed a petition to
terminate the mother’s parental rights, and the court terminated her rights. Mother appeals claiming,
in pertinent part, that the Department did not make reasonable efforts to reunite mother and son and
that the Department did not prove by clear and convincing evidence that Mother committed severe
child abuse. We have determined that the Department has failed to prove a ground for termination
by clear and convincing evidence and, consequently, the judgment of the trial court must be reversed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Reversed
PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which WILLIAM B. CAIN and FRANK
G. CLEMENT , JR., JJ., joined.
Elizabeth Earl McDonald, Sparta, Tennessee, for the appellant, T. E. E.
Paul G. Summers, Attorney General and Reporter; Juan G. Villasenor, Assistant Attorney General,
for the appellee, State of Tennessee, Department of Children’s Services.
OPINION
I. FACTUAL AND PROCEDURAL HISTORY
T.E.E. (“Mother”) is a seventh grade educated, mildly mentally retarded woman who, at the
time of the hearing, was 41 years old. Mother has suffered several nervous breakdowns in the past
resulting from childhood sexual and physical abuse. During the last several years, Mother has not
had legitimate employment and has a history of using illegal drugs. Although at times it is difficult
to decipher the chronology of events from the record, the basic facts are not at issue between the
parties.
The Department of Children’s Services (“DCS”) had been working with Mother since her
son (“Child”) was born in 1995. Between 1995 and 2002, Mother and DCS had three plans of action
with Child remaining in Mother’s custody. The plans of action concerned drug use by Mother with
the resulting risk of exposing Child to drug related environments and physical and educational
neglect of Child from a lack of supervision and a stable home. During this period of time, Mother
failed to comply with parts of the plans dealing with alcohol & drug assessments, treatment and
stable housing. During this early period, Mother also apparently refused to accept services from
Family Support Services.
In May of 2002, DCS filed a petition for temporary custody alleging Child to be dependent
and neglected. Due to excessive absences from school, Child was to repeat kindergarten for the third
time. The petition alleged that Child had not had a stable home for the preceding three years. On
September 20, 2002, the juvenile court entered a consent decree reflecting that Mother and DCS had
agreed to a Court Ordered Safety Plan (“Safety Plan”) designed to allow Child to remain in his
Mother’s custody. Testimony and later court documents refer to this consent decree or Safety Plan,
but it does not appear in the record before us. Apparently, the Safety Plan required Mother to
undergo alcohol and drug assessment, a psychological assessment, a parenting assessment and to
follow through with recommendations resulting from these assessments. With regard to the living
environment, the Safety Plan required Mother to maintain stable housing and provide a safe, clean,
drug free living environment for Child. Child remained in Mother’s custody.
While the Safety Plan was in effect, Mother received several types of services from DCS.
In November of 2002, DCS assigned this family to family support services manager, Carrie
Mayberry, with Upper Cumberland Service Agency. At the termination hearing, Ms. Mayberry
testified that prior to November 2002, Mother had participated in several programs to address her
parenting issues. Mother had received alcohol and drug treatment through the Intensive Outpatient
Drug Abuse Program provided by the Wellness Center in October of 2002, where she received her
certificate for successful completion. Mother had received parenting assessment through Kid’s First,
Inc., and three months in-home, one-on-one parenting skills training that she also completed,
including a therapeutic mentoring program to address Child’s needs. Mother also received random
drug screens.
Ms. Mayberry testified that while she had the case between November of 2002 and June of
2003, she discussed with Mother that she needed psychological treatment. Mother attended one
appointment at Plateau Mental Health Center (“Plateau”), but Ms. Mayberry was contacted by the
counselor at Plateau who told Ms. Mayberry that she was not qualified to treat Mother. Ms.
Mayberry testified she gave Mother the phone number of Plateau and, although Mother did not have
a phone, she told Ms. Mayberry it was not a problem since the neighbors let her use their phone.
Mother testified that she had been to Plateau at different times in her life and seen different doctors
and counselors, but had never been satisfied with their services. Ms. Mayberry testified that during
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this period between November of 2002 and June of 2003, Mother was not compliant with the drug
tests provided by DCS and that Mother admitted drug use to her.
As part of the Safety Plan, in January of 2003, Mother was referred by Ms. Mayberry to Scott
Herman, a psychological examiner and licensed professional counselor, for a complete psychological
assessment. Mr. Herman diagnosed Mother as having post-traumatic stress disorder, recurring
depression and mild mental retardation. He concluded that Mother was capable of accomplishing
most of the activities of daily life and usually may live independently. According to Mr. Herman,
her retardation, however, will make it difficult for Mother to “comprehend and resolve new and
complex situations.” Mr. Herman believed her substance abuse problems arose from her attempt to
self-medicate an emotional problem. At the time of her interview with Mr. Herman, she had been
on prescription medications for depression for four or five years. At the time of the psychological
evaluation, Mr. Herman testified he had concerns for Child’s safety in Mother’s care. Given the
situation, Mr. Herman testified he believed Mother and Child were vulnerable to victimization.
As a result of Mr. Herman’s interview of Mother, he recommended that Mother be referred
to receive, among other things, the following services: (a) mental health case management to assist
her in securing appropriate psychological treatment for herself, (b) psychiatric treatment, (c)
psychological counseling, (d) assistance from an advocacy agency such as ARC, and (e) one-on-one
training in managing attention deficit/hyperactivity (Child had been diagnosed with this condition),
and implementing a behavior management plan for Child.
While at Mr. Herman’s office for her evaluation, Mother reported to her DCS case worker
that Child had been sexually molested by a neighbor’s teenage son. By all accounts, Mother
volunteered this information, did not try to hide the fact of this abuse, and was very upset by it.
In March of 2002 or 2003, the record is not clear about the year, Mother tested positive for
methamphetamine and marijuana and failed to show for a follow-up drug screen in June of 2003.
On June 23, 2003, DCS filed a motion for temporary custody of Child, and by order entered
that day and based on the sworn motion, the Juvenile Court removed Child from Mother’s custody
placing him in the court’s protective custody. See Tenn. Code Ann. § 37-1-128(b)(2) (authorizing
pre-hearing removal in certain circumstances). Temporary custody of Child was placed with DCS.
The court removed Child from Mother’s custody because it found there was probable cause, based
on the filings, to believe she failed to substantially comply with the Safety Plan. The juvenile court
found that there was probable cause to believe that Mother had failed to follow up on the
recommendations by Mr. Herman resulting from her psychological evaluation, was about to lose her
housing, continued to associate with known drug users at her residence, and admittedly continued
to use illegal drugs. A hearing was set for the same day, but the record before us makes no reference
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to such a hearing.1 An adjudicatory hearing was held August 26, 2003, but the order from that
hearing was not entered until February of 2004. See Tenn. Code Ann. § 37-1-129(a) (governing
adjudicatory hearings in dependent and neglect cases).
As required by Tenn. Code Ann. § 37-2-403, in July of 2003 DCS prepared a Permanency
2
Plan. The Plan was approved by the juvenile court on August 26, 2003. Neither Mother nor any
caseworker signed the Plan and there is no indication a staffing took place or who participated in it.
The stated goal of the Plan was to return Child to Mother, and the projected date to reach this goal
was June 17, 2004, one year from the date the Plan said the goal was established. As is customary
and required, the Permanency Plan assigned tasks to each party, including Mother, and stated the
desired outcome for each task. In addition, the Plan set an “expected achievement date” for each
responsibility assigned to Mother, and that date was set at June 17, 2004.
According to the Plan, Mother was expected to obtain and complete mental health case
management, ARC services, vocational rehabilitation, one on one parenting training, substance abuse
treatment, drug screens, training on the prevention of Child sexual abuse; and mental health
counseling. She was also required to demonstrate lifestyle changes, establish a means of legal
income, obtain and maintain stable and suitable housing, complete parenting assessment and
parenting training, attend Child’s school events and meetings, acknowledge and accept responsibility
for the physical abuse she inflicted on Child3, participate in counseling that addresses this physical
abuse, complete an A&D assessment and treatment, and submit to random drug screens.4
In August of 2003, Angie Bullock became DCS case worker assigned to this family. The
record is not clear whether Mother had any contact with a DCS case worker prior to Ms. Bullock but
after Child’s removal. (Mother did have contact with DCS representatives who were assisting her
son). This period is critical since it is at least 2 of the 6 months Mother ultimately was given to meet
the requirements of the Permanency Plan.
According to Ms. Bullock, although she was not the caseworker at the time, in July of 2003,
Mother was given phone numbers of mental health counselors that accept TennCare to begin
individual counseling. The record reflects that “someone” took Mother to one such appointment,
but due to a change in Mother’s TennCare benefits, the doctor would not see Mother. There were
1
Presumably, this hearing was intended to be the preliminary hearing required by Tenn. Code Ann. § 37-1-
117(c), which must be held if the child is not returned to the parent within three days.
2
Actually there were two Permanency Plans, dated July 17 and 23 of 2003 respectively. The terms relevant to
these proceedings are basically the same in both plans, and the later plan addresses Child’s therapeutic foster care needs.
Our reference will be to the later Permanency Plan dated July 23, 2003.
3
This requirement related to an incident in which Ms. Mayberry visited Mother’s home, heard screaming before
she entered, and observed a welt on Child’s back. Mother testified about this incident, describing it as an aberration from
her usual methods of dealing with Child.
4
A number of these tasks appear to have been completed before the Plan was prepared.
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bi-weekly visits between Child and Mother conducted by a behavioral specialist with Youth
Villages. DCS provided transportation for Mother to visit Child and to some medical/dental
appointments. In September of 2003, Ms. Bullock assisted Mother in filing for social security
disability benefits due to her mental and physical health problems. At this time she also offered to
request funds to assist Mother in getting suitable housing.
In October of 2003, after a referral from DCS, Mother saw a physician at Plateau and was
prescribed psychotropric medication. Mother, however, did not schedule follow-up appointments
with the doctor at Plateau. She experienced problems with her medication; it made her feel bad and
caused her to sleep a great deal. She later went to another doctor who took her off most of the
medications that had been prescribed. She improved. In November of 2003, Ms. Bullock sent
Mother a letter with information about a follow up appointment at Plateau and case management
services. Mother did not remember receiving this letter. From the record, it appears that Mother did
not have a stable residence during this time and no dependable mailing address.
In January of 2004, Ms. Bullock took Mother to a shelter for abused women. Before this,
Mother had been living with the family of the boy who had abused Child and with her mother and
her mother’s abusive boyfriend. Less than three weeks later, Mother was required to leave the
shelter for failure to comply with her plan at the shelter.
Seven months after taking Child into custody, six months after preparation of the initial
permanency plan, and five months after the court approved that plan, on January 30, 2004, DCS filed
its Petition to Terminate Parental Rights of Mother. It is not clear from the record why DCS filed
its petition five months before the period established in the Permanency Plan expired. Presumably
DCS filed at this early juncture because it did not believe Mother was making sufficient progress
under the Permanency Plan. DCS sought to terminate Mother’s rights on the following grounds: (1)
abandonment under Tenn. Code Ann. § 36-1-113(g)(1); (2) substantial non-compliance with
Permanency Plan under Tenn. Code Ann. § 36-1-113(g)(2); (3) persisting conditions that prevented
the Child’s return to the home after six (6) months in foster care, under Tenn. Code Ann. § 36-1-
113(g)(3); (4) severe child abuse as defined by Tenn. Code Ann. § 37-1-113(g)(4); and (5) parental
incompetence under Tenn. Code Ann. § 36-1-113(g)(8).
Shortly thereafter, DCS prepared a new permanency plan with a goal of adoption. The
revised plan was presented to Mother at a staffing on February 5, 2004. Mother signed,
acknowledging that plan had been discussed with her, but specifically disagreed with the plan. A
number of people who attended the staffing also signed the Plan indicating their participation.
Mother also, on February 5, 2004, signed an acknowledgment that she had received a copy of
“Criteria & Procedures for Termination of Parental Rights” and been given an explanation of its
contents. That document lists the grounds for termination of parental rights. Ms. Bullock signed
the document stating she had explained it to Mother on February 5, 2004. The revised plan was
approved by the juvenile court by order entered March 30, 2004. The termination petition had been
heard shortly before this order was entered.
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In support of its motion for the court to ratify the revised plan, DCS submitted an Affidavit
of Reasonable Efforts supplied by Ms. Bullock. The affidavit recounted services that had been
provided under the Safety Plan before June 20, 2003 and services that had been provided from
Child’s removal on June 20, 2003, to date, February 17, 2004.
Meanwhile, on February 17, 2004, the trial court entered an Adjudicatory and Dispositional
Hearing Order reflecting the result of the August 26, 2003, hearing on DCS’s motion for temporary
custody that had been filed in June of 2003. See Tenn. Code Ann. § 37-1-129(a). The court found
Child was dependent and neglected.
The trial court held a hearing on DCS’s petition to terminate Mother’s parental rights in
March of 2004. Among those who testified at the hearing were Ms. Mayberry, Ms. Bullock, Mr.
Herman, Child’s foster mother, Mother and two friends. At the hearing, Mother testified about
several adjustments she had recently made in her life. She testified she had a job5, had applied for
public housing, was living with a female friend until public housing became available, had stopped
using drugs and associating with drug users, and had an appointment for the day after the hearing
at Life Care, apparently for case management services and counseling. It was clear that Mother’s
friend had assisted her in several areas, including looking for housing.
In July of 2004, the trial court entered a Final Decree of Guardianship finding that DCS had
proved by clear and convincing evidence that grounds for termination of parental rights existed under
Tenn. Code Ann. § 36-1-113(g)(1), (2), (3), and (4) and that it was in Child’s best interest to
terminate Mother’s parental rights.6 The court found that DCS had made reasonable efforts to
reunite Mother with Child. The trial court refused to terminate Mother’s rights on the grounds that
she was not competent under Tenn. Code Ann. § 36-1-113(g)(8), finding that she had the ability to
care for Child.
On appeal, Mother focuses on five (5) specific findings by the trial court that Mother claims
were in error: (1) that DCS provided the necessary reasonable efforts to reunite Mother and Child;
(2) that there was little likelihood of conditions being remedied so that Child could return home; (3)
that Mother had committed severe Child abuse; (4) that termination is in Child’s best interest; and
(5) that Mother was financially capable of paying Child support.7
5
Although the assignment M other was working on was temporary in duration, she testified her employer had
told her he would give continue to give her assignments providing care to elderly or sick persons.
6
This order also terminated the parental rights of Child’s father. The father did not participate in the
proceedings below and filed no appeal.
7
Because of our resolution of the primary issues, we do not address all issues raised by Mother.
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II. STANDARD FOR TERMINATION OF PARENTAL RIGHTS
A court may terminate a person’s parental rights only if (1) the existence of at least one
statutory ground is proved by clear and convincing evidence and (2) it is shown, also by clear and
convincing evidence, that termination of the parent’s rights is in the best interest of the child. Tenn.
Code Ann. § 36-6-113(c); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). The higher evidentiary
standard, as well as procedural safeguards, exist to prevent unwarranted government interference
with a parent’s fundamental and constitutionally protected right to the care and custody of his or her
children.8 Because of the severity of the consequences of a decision to terminate parental rights,9
such proceedings must insure protection of that right.
Our legislature has identified those situations in which the state’s interest in the welfare of
a child justifies interference with a parent’s constitutional rights by setting forth grounds on which
termination proceedings can be brought. Tenn. Code Ann. § 36-1-113(g). The statutes on
termination of parental rights provide the only authority for a court to terminate a parent’s rights.
Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004). Thus, parental rights may be terminated only
where a statutorily defined ground exists. Tenn. Code Ann. § 36-1-113(c)(1); Jones v. Garrett, 92
S.W.3d 835, 838 (Tenn. 2002); In re M.W.A., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998). To
support the termination of parental rights, only one ground need be proved, so long as it is proved
by clear and convincing evidence. In the Matter of D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003).
The requisite higher standard of proof applicable to both grounds and best interest is one of
the safeguards necessitated by the severity of the interference with the parent’s fundamental rights.
In order to be clear and convincing, evidence must eliminate any serious or substantial doubt about
the correctness of the conclusions to be drawn from the evidence. In re Valentine, 79 S.W.3d at 546;
Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992). Such evidence should produce
in the fact-finder’s mind a firm belief or conviction as to the truth of the allegations sought to be
established. In re A.D.A., 84 S.W.3d 592, 596 (Tenn. Ct. App. 2002); In re C. W. W., 37 S.W.3d
467, 474 (Tenn. Ct. App. 2000). In contrast to the preponderance of the evidence standard, clear and
convincing evidence should demonstrate that the truth of the facts asserted is “highly probable” as
8
A parent has a fundamental right to the care, custody and control of his or her child. Stanley v. Illinois, 405
U.S. 645, 651, 92 S. Ct. 1208, 1212-13 (1972); Nash-Putnam v. McCloud, 921 S.W .2d 170, 174-75 (Tenn.1996); In
Re Adoption of a Female Child, 896 S.W .2d 546, 547 (Tenn.1995); Nale v. Robertson, 871 S.W .2d 674, 678
(Tenn.1994). This right is a fundamental but not absolute right, and the state may interfere with parental rights if there
is a compelling state interest. Santosky v. Kramer, 455 U.S. 745, 747, 102 S. Ct. 1388, 1391 (1982); Nash-Putnam, 921
S.W .2d at 174-75.
9
Terminating parental rights has the legal effect of reducing the parent to the role of a complete stranger,
“severing forever all legal rights and obligations of the parent.” Tenn. Code Ann. § 36-1-113(l )(1). The United States
Supreme Court has recognized the unique nature of proceedings to terminate parental rights, stating that “[f]ew
consequences of judicial action are so grave as the severance of natural family ties.” M.L.B. v. S.L.J., 519 U.S. 102, 119,
117 S. Ct. 555, 565 (1996) (quoting Santosky, 455 U.S. at 787, 102 S. Ct. at 1412 (Rehnquist, J., dissenting)). As a
result, “[t]he interest of parents in their relationship with their children is sufficiently fundamental to come within the
finite class of liberty interests protected by the Fourteenth Amendment.” Id.
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opposed to merely “more probable” than not. In re C. W. W., 37 S.W.3d at 474; see also Estate of
Acuff v. O’Linger, 56 S.W.3d 527, 537 (Tenn. Ct. App. 2001).
Due to the grave consequences that accompany such decisions, courts must apply
individualized decision-making to a termination decision. In re Swanson, 2 S.W.3d 180, 188 (Tenn.
1999). Due process requires the application of stringent standards to insure protection of the
fundamental rights at stake. Because of the constitutional implications, gravity of consequences,
higher standard of proof, and required individualized decision making, our legislature has explicitly
required that courts making termination of parental rights decisions “enter an order which makes
specific findings of fact and conclusions of law.” Tenn. Code Ann. § 36-1-113(k). In this court’s
review, we must determine de novo whether DCS sustained its burden to prove its case by clear and
convincing evidence. In re Valentine, 79 S.W.3d at 546.
III. ABANDONMENT
Among the grounds alleged by DCS in its petition, and found by the trial court to have been
shown, was abandonment, as defined by a specific subsection of the statute defining that term:
. . . and for a period of four (4) months following the removal, the department or
agency has made reasonable efforts to assist the parent(s) or guardian(s) to establish
a suitable home for the child, but that the parent(s) or guardian(s) have made no
reasonable efforts to provide a suitable home and have demonstrated a lack of
concern for the child to such a degree that it appears unlikely that they will be able
to provide a suitable home for the child at an early date.
Tenn. Code Ann. § 36-1-102(1)(A)(ii).
The General Assembly has established requirements for the type of notice that must be given
a parent as a prerequisite to proceedings to terminate on the ground of abandonment. Tennessee
Code Annotated § 37-2-403 establishes requirements for a permanency plan for a child placed in
foster care. It also establishes requirements for notice to parents of the definition and potential
consequences of “abandonment” as that term is defined in Tenn. Code Ann. § 36-1-102.10 First, that
definition and the potential and procedures for termination of parental rights are to be included on
the initial permanency plan itself, which is to be signed by the parent. Tenn. Code Ann. § 37-2-403
(a)(2)(A). Second, at the hearing on the court’s consideration of the permanency plan, the court
“shall explain on the record the law relating to abandonment contained in § 36-1-102.” Tenn. Code
Ann. § 37-2-403 (a)(2)(B)(i). If the parents are not present at the first hearing, the court is to make
the required explanation at any subsequent hearings. Id.
10
Tenn. Code Ann. § 37-2-403 includes specific requirements about notice of failure to support or failure to
visit, referring to other statutory definitions of abandonment, but the statute’s repeated references to abandonment as
defined in § 36-1-102 make it clear that the notice requirements apply to all definitions of abandonment.
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If the parents do not appear at permanency plan hearings or cannot be provided notice of such
hearings, DCS may still proceed to terminate parental rights on the ground of abandonment “under
§ 36-1-102” only if DCS demonstrates specified things at the time of the termination proceeding.
Tenn. Code Ann. § 37-2-403 (a)(2)(B)(ii). Those showings are:
(a) That the court record shows, or the petitioning party presents to the court a
copy of the permanency plan or plan of care that shows that the defendant parents or
legal guardians, subsequent to the court review in subdivision (a)(2)(B)(i), has signed
the portion of the permanency plan or plan of care which describes the criteria for
establishing abandonment under § 36-1-102, or that the court record shows that, at a
subsequent hearing regarding the child, the court made the statements to the parents
or legal guardians required by subdivision (a)(2)(B)(i).
(b) By an affidavit, that the child’s permanency plan or plan of care containing
language which describes the criteria for establishing abandonment under § 36-1-102
was presented by the agency party to the parents or guardians at any time prior to
filing the termination petition, or that there was an attempt at any time to present the
plan which describes the criteria for establishing abandonment under § 36-1-102 to
the parents or guardians at any time by the agency party, and that such attempt was
refused by the parents or guardians.
(c) That, if the court record does not contain a signed copy of the permanency plan
or plan of care, or if the petitioning agency cannot present evidence of a permanency
plan or plan of care showing evidence of such notice having been given or an affidavit
showing that the plan was given or that the plan was attempted to be given to the
parents or guardians by the agency and was refused by the parents or guardians, and,
in this circumstance, if there is no other court record of the explanation by the court
of the consequences of abandonment and the right to seek an attorney at any time, then
the petitioning agency shall file with the court an affidavit in the termination
proceeding which describes in detail the party’s diligent efforts to bring such notice
required by subdivision (a)(2)(B)(i) to such parent or guardian at any time prior to
filing the agency’s filing of the termination petition.
Neither of the two initial Permanency Plans in the record reflects Mother’s signature or that
of the case worker who prepared the Plans. Specifically, the Plans have a separate section, entitled
“Agreements and Signatures” which consists of various statements that the parent is supposed to sign
indicating agreement, e.g., “The Permanency Plan has been discussed with me;” “I agree with the
Permanency Plan;” and “I have been provided with a written copy of my appeal rights.” No signature
appears in any of these spaces. In addition, there is a place for all participants in the staffing to sign.
No signatures appear in that space. Mother’s signature does not appear anywhere on the Plans, nor
is there any indication she refused to sign. There are simply no signatures of anyone who should have
been involved in the development of the Plans and their staffing. In addition, neither of the Plans
contains the notice required by Tenn. Code Ann. § 37-2-403(a)(2)(A).
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At the termination hearing, the only DCS worker called as a witness was Angie Bullock, who
was the case manager assigned to this family in August of 2003. Ms. Bullock testified that she did
not staff the July plans. Consequently, she could have no personal knowledge about the staffing,
whether Mother attended, why there were no signatures on the plan, and even whether or when
Mother was given a copy of the plan or given the required explanation of abandonment and its
potential consequences. Further, there was absolutely no evidence that Mother was told in June or
July that she had only four months from Child’s removal to find suitable housing or would face
termination of her parental rights.
Mother testified she was generally aware of the Plan’s requirements, but was not asked
whether she had attended a staffing in July when the plan was prepared, or whether the DCS worker
had, at that staffing, explained to her the definition of abandonment or the consequences of conduct
meeting that definition. She also was not asked if she was ever informed that her failure to establish
a suitable home within four months of child’s removal could result in termination of her parental
rights. It is obvious from her other testimony that she knew she had to work on all aspects of the
Plan, perhaps because of the pre-removal Safety Plan and pre-removal discussions with DCS, but had
no idea that DCS considered her deadline for housing to be October of 2003.
The July 23 Permanency Plan was approved by the court on August 26, 2003. Although the
court’s signature affirms that the approval was based on evidence presented in support of the plan and
with “all parties having the opportunity to be heard,” nothing in the record before us indicates when
a hearing was held or that the court provided the explanations set out in Tenn. Code Ann. § 37-2-403
(a)(2)(B)(i).11 Consequently, there is no evidence of the type required by the statute that, prior to DCS
filing its petition for termination, Mother was given notice of the definition of abandonment relied
upon by DCS or the fact that DCS could use that definition to terminate her parental rights.
The notice provisions of the statute are designed to inform parents, before they engage in
conduct constituting abandonment, of the potential consequences of that conduct. Otherwise, it has
no real purpose. With regard to the definition of abandonment occurring in the first four months after
the child is removed from the home, that notice would need to be given quickly and clearly. If a
parent is notified after the fact, i.e., after the four months has run, he or she has no way to avoid the
consequences and cannot remedy the situation. In that situation, the purpose of the notice
requirements is not fulfilled.
As discussed earlier, DCS prepared a new, revised permanency plan in February of 2004, after
it had filed its petition to terminate Mother’s parental rights. That plan recognized DCS’s change of
opinion regarding Child’s future placement and set the goal as adoption. That plan was signed by
Mother, although she indicated her disagreement with it, and she acknowledged in writing that the
plan had been discussed with her and that she had received written notice, and an explanation, of the
11
There was a hearing held August 26, 2003, but the only order in the record referring to that hearing describes
it as an adjudicatory hearing on DCS’s petition to remove child from Mother’s home. That order indicates Mother was
present at the hearing. The order makes no mention of the Permanency Plan.
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definition of abandonment and the criteria and procedures for termination of parental rights.
Obviously, notifying Mother in February of 2004 that her failure to establish a suitable home by
October of 2003 constituted grounds for termination in a petition that had already been filed does not
meet the statutory requirement of notice.
In determining whether the notice requirements have been met, we must also examine one
additional aspect of the testimony. Ms. Bullock testified that at a “staffing” sometime after the
original plan’s staffing, she went over the plan’s requirements with Mother and told her that if she
failed to comply with the requirements, DCS would file to terminate Mother’s parental rights.
However, Ms. Bullock could not state exactly when that staffing occurred, saying only that it had
occurred “a few months ago.” This testimony took place on March 16, 2004, so the conversation
described by Ms. Bullock could have occurred after the filing of the petition to terminate Mother’s
parental rights. This testimony also indicates that Mother was given the required notification after
the four months had expired, i.e., after October of 1993.
Ms. Bullock’s use of the term “staffing” makes it more likely that she was referring to the
staffing related to the February 5, 2004, revised Permanency Plan since on that date she also signed
a statement that she had explained the contents of the “Criteria & Procedures for Termination of
Parental Rights” to Mother. Of course, that staffing related to the Plan that had as its goal the
adoption of Child, and the written notice and explanation were given to Mother after the petition to
terminate were filed. The petition was based in part on Mother’s alleged noncompliance with the July
2003 plan.
DCS did not make or attempt to make any of the other showings required in the absence of
proof in the record that the parent was advised in accordance with Tenn. Code Ann. § 37-2-403. It
did not file the affidavit mentioned in Tenn. Code Ann. § 37-2-403(a)(2)(b)(ii)(c).
Consequently, DCS has failed to show that Mother was given the notice required by Tenn.
Code Ann. § 37-2-403 and, as a result, was precluded from proceeding to terminate Mother’s rights
on the ground of abandonment. We reverse the trial court’s holding as to the ground of abandonment.
As the language of the statutory definition set out above makes clear, the type of abandonment
relied on by DCS requires DCS to make reasonable efforts, within the same four month period, to
assist the parent to establish a suitable home. This court has previously examined the efforts made
by DCS as required under the relevant definition of abandonment and found them lacking. See In re
M.J.M., No. M2004-02377-COA-R3-PT, 2005 WL 873302, at *7 (Tenn. Ct. App. April 14, 2005)
(no Tenn. R. App. P. 11 application filed). We reach the same conclusion here. It is not clear that
any caseworker was responsible for assisting Mother during the first two months after child’s
removal. The new caseworker’s efforts as to housing from August through October apparently
consisted of offering to request funding to help with deposits, etc. and giving Mother the necessary
paperwork to complete. While such help would not have been inconsequential, it is not clear what
other assistance, if any, was provided to Mother to help her locate housing or navigate the public
housing system. It is also unlikely that had Mother completed the paperwork when it was given to
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her she would have been able to secure housing before the expiration of the four months. DCS knew
Mother would have difficulty with new and complex situations and was without transportation during
much of the relevant time period. DCS’s action to get Mother into a shelter occurred in January, well
after the four month period involved in the abandonment alleged.
IV. REASONABLE EFFORTS
The trial court found that DCS had also proved the grounds of substantial non-compliance
with requirements of the Permanency Plan and the persistence of conditions that, after six months in
foster care, prevented Child’s safe return to Mother’s home. Mother argues that DCS failed to use
reasonable efforts to assist her in meeting the requirements of the Plan and remedying the conditions
that led to Child’s removal.
DCS had a long involvement with this parent and child before it removed Child from the
home. After that removal, DCS apparently still believed that reunification of the family was in the
best interest of Child. Accordingly, it established Child’s return to Mother as the goal of the
Permanency Plan. Because of that stated goal, and because of its statutory responsibility, DCS was
required to use reasonable efforts to make it possible for the child to return home to Mother. While
a Permanency Plan establishes responsibilities for the parent(s), it also establishes responsibilities for
DCS.
A Permanency Plan with the goal of reunification is designed to address the situation and
problems that led to a child’s removal from home. There is a connection or relationship between the
circumstances occurring in the home that required removal and the requirements of the Plan. Herein,
the parties do not dispute that the requirements of the Plan were reasonably related to remedying the
conditions preventing Child from returning home. If the requirements of a Plan with the goal of
reunification are met, presumably the conditions that led to the removal no longer exist or no longer
prevent the safe return of the child to the home. Thus, the statutory grounds of substantial
noncompliance with the permanency plan and persistence of conditions (when the conditions alleged
are those that led to removal) are related. Often, the same issues and proof are involved with both
grounds. Additionally, with both grounds, the parent’s compliance with the requirements of the Plan
and ability to remedy conditions preventing the child’s safe return home are inextricably related to,
and often dependent upon, the efforts of DCS to assist the parent. See In re C.M.M., 2004 WL
438326, at *7.
There are two periods of time relevant to DCS’s obligation to use reasonable efforts. The first
is before the child is removed from the home. At any hearing to grant custody of a child to DCS,
DCS must demonstrate, and the court must determine, that DCS used reasonable efforts to prevent
the need for removal of the child from his or her family. Tenn. Code Ann. § 37-1-166(a)(1) and
(g)(2)(A). The second period of time is after removal, when, as a general rule, DCS must use
reasonable efforts to return the child home.
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In the case before us, Child was removed from the home on June 17, 2003, and a temporary
custody order was entered June 23. The basis for removal was the court’s finding there was probable
cause to believe Mother had not substantially complied with the previously entered Safety Plan. The
petition was accompanied by an Affidavit of Reasonable Efforts signed by Beth Mabe, a case
manager with DCS. She recounted various services that had been provided to the family up to the
date of filing.
An Adjudicatory and Dispositional Hearing Order was entered February 17, 2004, reflecting
that an adjudicatory hearing was held August 26, 2003, on the June 23 petition. Mother was present
at this hearing and represented by counsel. Based in part on the parties’ stipulation that Child
continued to be dependent and neglected and that DCS should retain temporary custody for placement
in foster care, the trial court found Child dependent and neglected and ordered that DCS retain
temporary custody. In addition, based on stipulations, evidence presented, and the entire record, the
court found:
that there is no less drastic alternative to removal; reasonable efforts have been made
to prevent removal and/or to make it possible for the child to return home; and
continuation of the child in the parent or legal guardian’s custody is contrary to the
best interest of the child.
With regard to reasonable efforts, the trial court specifically found that DCS had provided
intensive services to Mother and Child for more than a year, including arranging a psychological
evaluation for Mother, providing counseling to the child, providing a parenting assessment and
training for Mother, and arranging an alcohol and drug assessment and treatment for Mother.
“Despite these services the mother has continued to neglect the child as is more fully set out in the
Motion for Temporary Custody filed on June 23, 2003.”
The result of all this is that DCS was found to have provided reasonable efforts to prevent
removal of Child from the home. No appeal was taken from the court’s February 17, 2004
Adjudicatory and Dispositional Order. DCS’s efforts before removal of Child are not at issue in this
appeal.
The relevant question is whether DCS made reasonable efforts after Child’s removal to assist
Mother so that Child could be returned to Mother’s custody.12 After a child is removed from the
parent’s home, absent specified circumstances not relevant herein, DCS is also required to use
reasonable efforts to reunite the family. Tenn. Code Ann. § 37-1-166 (g)(2); In re C.M.M., 2004 WL
438326 at *6.
12
DCS concedes in its brief that while the efforts of DCS to work with Mother prior to the court’s removal of
Child from Mother’s custody in June of 2003 may be “probative of DCS’s good will,” the key question is DCS’s efforts
post-removal.
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Despite its earlier determination that Mother had not substantially complied with the terms
of the prior Consent Order that allowed Child to remain with Mother, and its determination that
removal of Child was necessary in June of 2003, DCS developed a Permanency Plan with the goal
of returning Child to Mother. The requirements the Permanency Plan assigned to Mother were
similar to those established in the earlier Consent Order or Safety Plan. Nonetheless, DCS apparently
determined that Mother should be given more time (until June of 2004) to reach the desired goals and
that she was capable of doing so with appropriate assistance.
Once DCS undertakes the obligation to use reasonable efforts to reunify a family, courts
should employ the standard of clear and convincing evidence to determine whether DCS’s efforts
have been reasonable. In re C.M.M., 2004 WL 438326 at *5.13
When required, DCS must establish that it has made reasonable efforts to reunite the
child with his or her parents by clear and convincing evidence. Tenn. Code Ann. §
36-1-113(c). This heightened burden of proof does not alter the standard by which the
Department’s efforts will be judged – the “reasonableness” standard. Rather, it simply
requires the Department to present sufficient evidence regarding its reunification
efforts to enable the trier-of-fact to conclude, without any serious or substantial doubt,
that the Department’s remedial efforts were reasonable under all the circumstances.
Id. at *8.
Reasonable effort has been defined by our legislature to mean “the exercise of reasonable care
and diligence by DCS to provide services related to meeting the needs of the child and family.” Tenn.
Code Ann. § 37-1-166(g)(1). The factors to be considered in determining whether DCS has made
reasonable efforts include, among others, the reasons for separating the parent from the child, the
parent’s physical and mental abilities, the resources available to the parent, and the parent’s efforts
to remedy the situation. Id. at *7.
The parties agree that a significant need of this mother was mental health services. The Safety
Plan in 2002 recognized that in order for Mother to retain custody, she must undergo a psychological
assessment and comply with the recommendations resulting from it. In January of 2003, Mother was
assessed by Mr. Herman, and the resulting recommendation was for Mother to have mental health
case management, psychiatric treatment, and psychological counseling. After Child was removed
from Mother’s custody, in July of 2003, the Permanency Plan cited as a key factor that Mother receive
the counseling recommended by Dr. Herman. As recently as February of 2004, in its Affidavit of
Reasonable Efforts supporting the revised Permanency Plan, DCS stated that in order to reunite the
family Mother “needs to successfully complete individual counseling.”
13
In order to terminate parental rights on the grounds found in Tenn. Code Ann. § 36-1-113(g)(1)-(3), generally
DCS must show that it has made reasonable efforts to reunite the child with his or her parents. In re C.M.M., 2004 W L
438326 at *7, fn. 27.
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Throughout this record, there is evidence that DCS and others believed Mother was competent
to care for Child but needed the assistance afforded by case management, treatment, and counseling
to be successful.14 Both DCS and Mother cite portions of Mr. Herman’s evaluation. As discussed
earlier, Mr. Herman found Mother suffered from post-traumatic stress disorder and recurring
depression and was mildly mentally retarded. He recommended that to address Mother’s drug use,
which he attributed to an attempt to self-medicate her depression, it was important to ensure “that she
receives appropriate mental health treatment. . . . Obviously, she should continue to receive treatment
from a psychiatric physician.” He also noted that Mother “would likely benefit from individual
psychotherapy” to address the symptoms from her mental health condition. Mr. Herman also stated
that Mother was “experiencing high levels of anxiety and depression” due in part to her son’s recent
disclosure he had been sexually abused. Mr. Herman’s observations were made several months
before Child was taken into DCS custody, an event that would likely have added to Mother’s anxiety
and depression.
The disagreement is not about Mother’s needs; rather, it centers around the sufficiency of
Mother’s efforts and those of DCS. DCS had the burden of proving, by clear and convincing
evidence, that its efforts were reasonable and that Mother’s were not, under the circumstances. We
have thoroughly reviewed the record to ascertain DCS’s efforts in this regard. First, we are troubled
that DCS initially gave Mother a year in the Permanency Plan to meet the goals then petitioned to
terminate rights after only six months. During the six month period between June of 2003 (when
Mother lost custody) and January of 2004 (when DCS petitioned to terminate her parental rights), it
does not appear Mother had a caseworker for the first two months of that period. While the
Permanency Plan established a period of approximately one-year for Mother to accomplish its goals,
DCS instead filed to terminate her rights after Mother had only a four month period with a
caseworker. Therefore, Mother’s period to improve was significantly abbreviated.
This court has expressed its concerns about DCS moving to terminate a parent’s rights well
short of the time allowed by the Permanency Plan for the parent to complete the responsibilities
assigned to him or her, absent intervening or extraordinary circumstances. See In re M.J.M., No.
M2004-02377-COA-R3-PT, 2005 WL 873302 (Tenn. Ct. App. April 14, 2005). Those concerns are
based on the fundamental unfairness inherent in providing the parent with notice of one set of
expectations and acting inconsistently with that notice.
The assistance offered Mother during this six month period of the Permanency Plan to obtain
all the services she needed in order to have any success in complying with the Plan was lacking. In
July of 2003, DCS caseworkers gave Mother telephone numbers of therapists who accepted
TennCare. Someone took Mother to one such appointment during this period, but Mother was
refused treatment due to a change in her TennCare coverage. A DCS referral resulted in Mother
seeing a physician at Plateau in October of 2003, who prescribed her psychotropric medication.
While DCS tried to follow-up after this appointment, it took the form of a letter which Mother does
14
Incompetency was included as a ground to terminate parental rights in DCS’s petition but the trial court found
Mother to be competent, and DCS does not challenge this decision.
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not remember receiving. Given the shifting residences of Mother, this is not surprising. Mother
herself attempted to set up counseling with Mr. Herman, but by that time he was working with Child
and could not accept Mother as a patient.
While under some situations this effort may be perfectly reasonable, it is not reasonable here.
Mr. Herman’s assessment specifically diagnosed Mother as a mildly mentally retarded woman who
would have difficulty comprehending and resolving new and complex situations. She had been taken
to mental health centers on two occasions in the past by her caseworkers and been refused service.
The record is clear that during this time Mother had no friends or family offering support, and had
limited transportation and mail or telephone access. This court has not found it easy to identify the
types of services Mother needed and the available sources for each of them. We are unable to find
that Mother should have been expected to know exactly what she needed, where she could obtain the
services, and how to access the system. Simply giving a mildly retarded woman in this situation
phone numbers and sending her a letter does not meet the reasonableness standard:
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 the assistance or not.
In re C.M.M., 2004 WL 438326, at *7 (citation omitted).
In order for Mother to benefit from the other services offered to her, Mother needed case
management, psychiatric treatment, and counseling. This case is closely akin to the facts of In re
M.E., No. M2003-00859-COA-R3-PT, 2004 WL 1838179 (Tenn. Ct. App. Nov. 8, 2004).
The record shows that the Department provided numerous services to Mother and the
family, either directly or through agencies including Home Ties, YWCA, Dede
Wallace, Staying Home and Coming Home, Caring For Children Program, and the
Rape and Sexual Abuse Center. However, the record reveals that the Department
failed to provide the most obvious and essential service Mother needed, the mental
health services recommended by Dr. Boggs. The juvenile court recognized early on
that Mother had mental deficiencies. Indeed, the juvenile court twice ordered
psychological evaluations for Mother. On June 25, 1997, the court ordered the
Department to provide a psychiatric evaluation for Mother. The first evaluation was
performed on July 15, 1997, but the report is not in the record. Then on May 3, 2000,
the court again ordered that a mental evaluation be performed on Mother with the
“referral to be made by DCS and CSA.”
...
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Many important findings are set forth in the report by Dr. Boggs but two leap from the
pages. One, Mother has “extreme difficulty understanding and processing information
that is solely verbal in nature.” Two, “It is recommended that [Mother] seek
individual psychotherapy with a therapist who is effective in treating the dependent
personality and its associated problems, (e.g., depression, anxiety, fears of
abandonment, etc.).”
It is troubling to note that the juvenile court ordered the Department to make the
referral for Mother to have a second psychological evaluation, and the evaluation
recommended individualized therapy, yet the therapy was not provided. Though the
Department provided many services that would likely meet the criterion of reasonable
services in some cases, by failing to provide the recommended psychological therapy,
the services that were provided proved to be a waste of time and money.
Id. at *7.
Applying the clear and convincing standard required of us, we find that DCS did not meet its
burden of proving that it made reasonable efforts to reunite Mother and Child. As a result, the
juvenile court’s finding that DCS established the grounds of failure to substantially comply with the
Permanency Plan under Tenn. Code Ann. § 36-1-113(g)(2) and persistent conditions under Tenn.
Code Ann. § 36-1-113(g)(3) must be reversed.
V. SEVERE CHILD ABUSE
The trial court also found that the ground of severe child abuse had been proved. Mother
argues that the record does not contain clear and convincing evidence of severe child abuse under
Tenn. Code Ann. § 37-1-102. DCS has not responded to this argument and, in fact, has not addressed
the trial court’s severe child abuse finding. Consequently, DCS has effectively conceded the issue
to Mother and has waived any argument in support of the finding. Thus, we need not deal with this
issue in depth.
Nonetheless, we have reviewed the entire record, including in particular the testimony on
which the trial court relied in making the finding. We conclude there was not clear and convincing
evidence Mother committed severe child abuse as defined by Tenn. Code Ann. § 37-1-102 against
Child. Presumably, DCS reached the same conclusion since it abandoned this ground on appeal. For
these reasons, we reverse the trial court’s finding that the ground of severe child abuse was proved
to exist.
VI. CONCLUSION
Because DCS failed to establish a statutory ground for termination of parental rights, we must
reverse the judgment of the trial court.
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The record before us includes evidence of Child’s improvement in the stable environment of
the foster home where he was placed as well as the excellent care he has received from his foster
parents. We cannot reach the issue of Child’s best interests because no ground for termination has
been proved. However, our decision herein does not affect Child’s placement or custody. The
juvenile court retains authority over those issues. Child may remain in the setting that has proved
beneficial to him, if the court so determines, until circumstances warrant a reconsideration.
The judgment of the trial court is reversed. We remand this case to Juvenile Court for White
County. Costs of appeal are assessed against the appellee, The State of Tennessee, Department of
Children’s Services, for which execution may issue if necessary.
____________________________________
PATRICIA J. COTTRELL, JUDGE
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