Dpt. of Child. Services v. DLSJ

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs, May 29, 2003
STATE OF TENNESSEE DEPARTMENT OF CHILDREN’S SERVICES v.
DLSJ, IN THE MATTER OF: CLJ, A CHILD UNDER THE AGE OF 18
YEARS
Direct Appeal from the Juvenile Court for Knox County
No. H3813 Hon. Carey E. Garrett, Judge
FILED AUGUST 11, 2003
No. E2002-00241-COA-R3-JV
The Trial Court on petition of the Department, terminated the mother’s parental rights to the child.
On appeal, we affirm.
Tenn. R. App. P.3 Appeal as of Right; Judgment of the Juvenile Court Affirmed.
HERSCHEL PICKENS FRANKS , J. delivered the opinion of the court, in which CHARLES D. SUSANO,
JR., J., and D. MICHAEL SWINEY, J., joined.
Mary L. Ward, Knoxville, Tennessee, for Appellant.
Paul G. Summers, Attorney General and Reporter,
and
Douglas Earl Dimond, Assistant Attorney General, Nashville, Tennessee, for Appellee.
OPINION
In this action to terminate the parental rights of CLJ (“child”), DOB: 6/9/93, the
record shows the mother has several children and has been the subject of various petitions filed
against her. In June 1999, DCS filed a Petition for Temporary Custody, alleging that the child was
dependent and neglected due to the fact that he had been badly injured in a fire in January of 1999.
He was hospitalized for several weeks and then taken to Patricia Neal Rehabilitation Center. The
staff there had tried to involve mother in the child’s care and treatment, but had not been successful.
The Petition alleged that a specific plan was developed with mother in April of 1999, but that mother
“repeatedly failed to appear for physical therapy sessions with the child, had failed to appear for
occupational therapy sessions, had failed to participate in speech therapy, had failed to participate
in any training to learn how to administer the child’s therapeutic feedings, and the Petition stated that
the child was ready to be released, but could not safely be released to mother due to her lack of
training regarding the child’s care.
The Court then entered a Protective Order of Custody, finding the child was subject
to an immediate threat to his health and safety and that there was no less drastic alternative than
removal. A Guardian Ad Litem was appointed and permanency plans were formulated, and in
October of 2000, on Motion for a Status Review, the Court found that DCS was in compliance with
the Plan, and the mother had complied with many aspects of the plan but the child should remain in
foster care until permanency plans could be developed. Ultimately, hearings on the termination
Petition were held on April 4, 17th and June 4, 2001.
Numerous witnesses were called to testify, and the mother testified on her own behalf.
At the conclusion of the evidence, the Guardian Ad Litem stated that he would recommend the child
remain in the foster home, because he felt the mother failed to follow through with responsibilities
and that if the child did not get proper constant attention, he might regress or even die.
The Court then found that during the child’s hospitalization, following his injury, the
mother did not visit or participate in his care and was antagonistic toward the hospital personnel.
As a result, she was not ready to care for the child when he was released from Patricia Neal, and he
was placed in DCS custody. The Court further found the mother was ordered to participate in
training to learn to care for the child, and that permanency plans were developed, but the mother did
not comply despite efforts of DCS. The Court stated that DCS had been involved with the mother
before the fire, and that the mother had a history of drug use, had a child born addicted to cocaine,
and she had failed to comply with previous court orders. The Court observed that while the mother
knew that caring for the child would be a tremendous responsibility, she had recently had another
child out of wedlock and had been sentenced to 11 months, 29 days for failure to have her older
children in school. The Court further found the mother was frequently not truthful with DCS and
others about her personal life and problems with her other children. The Court said that the child
will always require constant and consistent care, and that he had extraordinary needs and would
regress unless he received proper care. The Court found the child was in a placement where he was
bonded with his foster parents, and they were willing and able to care for him and provide him a
loving, permanent home, and that the mother was not capable of providing the care the child
required, and that she had consistently displayed an attitude and behavior toward authority1 that
prevented the necessary cooperative effort.
1
A licensed psychological examiner testified that the mother had limits on her intellectual
capacity and her scores fell within mildly mentally retarded or borderline range, and that the mother
was very impulsive and had difficulty making good plans. The witness characterized the mother as
not accepting outside help and tending to minimize problems and situations.
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The Court found by clear and convincing evidence that DCS made reasonable efforts
to assist the mother in establishing a suitable home for the child, but that the mother had failed to
make reasonable efforts, and had demonstrated a lack of concern for the child to such a degree that
it appeared unlikely that she would establish a suitable home in the near future. The Court found that
the conditions necessitating removal still existed, and that such conditions would likely not be
remedied in the near future. The Court found that the mother had failed to comply in a substantial
manner with the permanency plan, and the Court found by clear and convincing evidence that it was
in the child’s best interest to terminate the mother’s parental rights.
The issue on appeal is whether there was clear and convincing evidence which would
necessitate that the mother’s parental rights to the child be terminated?
A parent has a fundamental right to the care, custody, and control of their children.
Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208 (1972). This right is not absolute, and parental
relations may be terminated if there is clear and convincing evidence justifying termination under
an applicable statute. Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388 (1982).
In reviewing a trial court’s decision to terminate parental rights, we have previously
recognized that we must affirm the termination if the record contains clear and convincing evidence
to support any of the bases found by the trial court. In re C.W.W., 37 S.W.3d 467 (Tenn. Ct. App.
2000). We have explained that “clear and convincing” is a more stringent requirement than a
preponderance, but less stringent than “beyond a reasonable doubt.” O’Daniel v. Messier, 905
S.W.2d 182 (Tenn. Ct. App. 1995). In this case, the Trial Court terminated the mother’s parental
rights on the statutory grounds of failure to substantially comply with the plan of care; and the
conditions requiring removal still persisted and would not likely be remedied in the near future. See
Tenn. Code Ann. §36-1-113(g) and (I). Additionally, the Court found that there was clear and
convincing evidence that termination was in the child’s best interest.
Regarding whether the mother failed to substantially comply with the plan of care,
it must be recognized that the mother was asked to do only a few discreet things in the plan of care.
She was asked to visit the child regularly and receive training in how to properly care for him, and
demonstrate that she had the skills to care for the child, and further was required to attend therapy
until successfully released. The evidence shows that the mother made some attempts at compliance,
but did not substantially comply with any of these requirements.
Mother’s visits were sporadic and she never managed to visit in a consistent manner,
and in instances where she failed to show up, she failed to call and let anyone know and failed to
reschedule. The mother testified that she tried to visit as much as she could, but that her car
sometimes prevented her from going. The case worker testified the mother had access to $240.00
per month in expense money that she could have used for repairs, gas, bus tickets, or whatever, but
the mother never utilized this fund. The mother explained that she thought this was only for gas, but
she never had a problem getting gas for her car, but it broke down sometimes. The caseworker
testified she had explained to mother what the account was for, but the mother refused to cooperate.
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While the mother argued that she did everything she could, her testimony was called into question
by the testimony of other witnesses, and great deference must be given to the trial court’s rulings on
issues involving witness credibility. McCaleb v. Saturn, 910 S.W.2d 412 (Tenn. 1995).
The mother testified that she could do anything that the school did for the child
regarding his therapy and care, but when questioned, seemed to only know basic skills and could not
testify with any specificity about what was required of her in caring for the child. Other witnesses
testified that the mother never made the effort to consistently be trained or to demonstrate to anyone
that she was capable of meeting the child’s needs.
The Court also found the conditions which led to removal still persisted, and were
not likely to be remedied in the near future. This ground for removal is also dependent on the
foregoing, since the child was removed from the mother’s care because she could not meet his
medical needs. This condition still exists, and there is no indication that it will likely be remedied
in the near future, given the length of time that has elapsed with minimal efforts to cope
demonstrated by the mother.
Regarding the best interest analysis, our statute expressly provides certain criteria for
determining when a termination is in the child’s best interests. See Tenn. Code Ann. § 36-1-113(I).
It is clear, in light of these factors, that it is not in the child’s best interest to be
returned to the mother, given the fact that she has not made significant adjustments of her
circumstances or conduct to make it safe and in the child’s best interest to be in the mother’s home.
She has not developed or demonstrated the skills necessary to care for him, and it has been shown
that she does not exercise good judgment in other instances, such as the truancy and behavior
problems with her other children and other relationships. Regrettably, the mother has failed to effect
a lasting adjustment after reasonable efforts by the agencies, and has in most instances refused to
avail herself of help that was offered to her by those agencies.
There was substantial evidence offered that it would likely be detrimental to the child
if his caretakers and physical environment were changed, and the proof demonstrated the child
needed constant attention and strict consistency in order to maintain any progress. It was further
shown that the mother’s mental and/or emotional state could be detrimental to the child receiving
the care he needed.
The evidence is clear and convincing that the child’s best interest is served by
terminating the mother’s parental rights. Accordingly, we affirm the Judgment of the Trial Court
and remand, with the cost of the appeal assessed to appellant.
_________________________
HERSCHEL PICKENS FRANKS , J.
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