In Re: Josephine E.M.C.

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs January 17, 2014
IN RE: JOSEPHINE E. M. C.
Direct Appeal from the Juvenile Court for Sevier County
No. 13-000005 Jeffrey D. Rader, Judge
No. E2013-02040-COA-R3-PT-FILED-APRIL 17, 2014
This appeal involves the termination of a mother’s parental rights to her young daughter. The
trial court terminated the mother’s parental rights based upon four separate grounds:
substantial noncompliance with a permanency plan; abandonment by willful failure to visit;
abandonment by failure to provide a suitable home; and persistent conditions. We find that
DCS failed to prove by clear and convincing evidence that it made reasonable efforts to
reunify the mother and her child, and we reverse the trial court’s finding that grounds for
termination were proven by clear and convincing evidence. This matter is remanded for such
further proceedings as may be necessary.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Juvenile Court Reversed
and Remanded
A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R. F ARMER,
J., and J. S TEVEN S TAFFORD, J., joined.
Rolfe A. Straussfogel, Knoxville, Tennessee, for the appellant, J. C.
Robert E. Cooper, Jr., Attorney General and Reporter, Martha A. Campbell, Deputy Attorney
General, Nashville, Tennessee, for the appellee, State of Tennessee Department of Children’s
Services
Robert L. Huddleston, Maryville, Tennessee, Guardian Ad Litem for Josephine E. M. C.
OPINION
I. F ACTS & P ROCEDURAL H ISTORY
Josephine E.M.C. was born out-of-wedlock to Mother and Father on July , 2011. On
April 26, 2012, the Tennessee Department of Children’s Services (“DCS”) received a referral
alleging that nine-month-old Josephine was improperly supervised due to the fact that her
custodian, Mother, was intoxicated and had been arrested, and the child was at the Gatlinburg
police station. Josephine was taken into the protective custody of DCS at approximately 1:00
a.m.
The next day, on April 27, 2012, DCS filed a petition in the juvenile court of Sevier
County seeking temporary legal custody of Josephine and asking the court to declare her
dependent and neglected. The petition alleged that Mother had been arrested and charged
with child neglect.1 According to the petition, the DCS case manager who arrived at the
police station interviewed Mother and learned that she and Josephine’s father had a history
of domestic violence. The case manager also reported that Mother “had slurred speech and
appeared somewhat incoherent” during the interview. Thus, the petition alleged that there
was no less drastic alternative than removing Josephine from Mother’s care pending a
preliminary hearing.2 The juvenile court issued a protective custody order awarding
temporary legal custody of Josephine to DCS, and Josephine was placed in the home of a
foster family.
A preliminary hearing was held on May 9, 2012. The juvenile court found that it was
contrary to the child’s best interest to remain in the custody of her parents and that there was
no less drastic alternative to removal. Specifically, the court found that Mother and Father
“have a history of domestic violence which is continuing” and that Mother “has admitted
1
According to the affidavit of complaint with regard to Mother’s arrest for child neglect, she and
Josephine were found in a motel room with numerous other intoxicated adults, and according to the
responding officer, it “was very clear that the mother had intentionally bec[o]me intoxicated while caring
for her baby and could no longer maintain the baby's safety, health, and welfare.” Mother eventually pled
guilty to misdemeanor child neglect and was placed on probation.
2
The petition for temporary custody filed by DCS alleged that Josephine's father had multiple
outstanding warrants in Georgia, that he had recently been charged with DUI, possession of stolen property,
leaving the scene of an accident, reckless driving, and "no insurance" in connection with a car accident in
Pigeon Forge, Tennessee, and that after a meeting with DCS following Mother's arrest, he submitted to a drug
test which was positive for marijuana.
Josephine’s father’s parental rights were terminated during these proceedings but he did not appeal
the order of termination. Therefore, we will only discuss Father ’s involvement in this case to the extent that
it provides background information or as it relates to Mother’s circumstances.
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ongoing substance abuse.” Thus, the court ruled that Josephine would remain in the custody
of DCS pending an adjudicatory hearing. The court ordered Mother to pay $100 per month
in child support for Josephine beginning on June 9, 2012. The court also explained to
Mother the definitions of abandonment for failure to visit and failure to support and how
those terms relate to the termination of parental rights. The court ordered Mother to
complete an alcohol and drug assessment and to submit to random drug screens. Mother was
given a drug screen that day, and she tested positive for THC. She apparently “admitted she
would test positive” when faced with another test on May 17, 2012.
A permanency plan was developed for Josephine on May 22, 2012. The plan stated
its goals as “Return to Parent” or “Exit Custody with Relative,” and it set a goal target date
of October 26, 2012. According to the plan, the conditions that prevented Josephine from
exiting state custody were the unresolved criminal charges involving both parents, the
unresolved alcohol and drug issues involving both parents, and the Department’s concerns
regarding the history of domestic violence between the parents. The permanency plan
required Mother to resolve her criminal charge of child neglect and to avoid any new
charges. It required Mother to attend an alcohol and drug assessment, to honestly report her
history of illicit drug use, and to follow all recommendations of the assessment. It also
required her to attend Alcoholics Anonymous meetings to maintain her sobriety, and to
provide proof of her attendance to DCS. The plan listed as one of Mother’s strengths that
she “admits she has issues with alcohol” and that she was reportedly trying to get into an
alcohol and drug treatment program. The plan required Mother to submit to random drug
screens at DCS’s request. In order to address the issue of domestic violence, the permanency
plan required Mother to attend non-offender domestic assault classes to completion.
Due to the Department’s concern that Mother had not demonstrated safe supervision
of Josephine in the past, as evidenced by her alcohol consumption, the permanency plan also
required Mother to attend parenting classes and to demonstrate safe and appropriate
parenting techniques during supervised visits with Josephine. The plan provided that Mother
would visit with Josephine every other Thursday for two hours at the DCS office and that she
would provide diapers, wipes, a snack and drink, and age-appropriate toys for Josephine
during these visits. It required DCS to assist the parents with transportation to and from
visits when needed.
The permanency plan also noted the Department’s concern with Mother’s instability
regarding her employment and her housing situation. The plan noted that both Mother and
Father were currently living in motel rooms. According to the plan, they also had limited
access to transportation, as evidenced by their late arrival at court hearings and their self-
reported transportation issues preventing their attendance at child and family team meetings.
Consequently, the permanency plan required them to submit proof of legal income to DCS
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on a monthly basis, to provide proof of housing appropriate to suit the family’s needs, and
to show an ability to access reliable transportation, to be evidenced by their attendance at
scheduled appointments, court hearings, and employment responsibilities.
Mother did not attend the meeting at which the permanency plan was developed, but
she signed the permanency plan during a visit with Josephine on May 31, 2012,
acknowledging that she was in agreement with the plan and had been provided with a copy.
Mother also signed a document explaining the criteria for termination of her parental rights.
That same day, Mother took another drug screen and again tested positive for THC. Mother
tested positive for THC on yet another drug screen on June 14, 2012. She regularly attended
supervised visits with Josephine as scheduled during this time.
On June 27, 2012, the juvenile court held an adjudicatory hearing and found by clear
and convincing evidence that Josephine was dependent and neglected. Mother did not appear
at the hearing but she was represented by her appointed counsel. The juvenile court heard
testimony from DCS representatives and from law enforcement officers. The court found
that Mother and Father “have a history of domestic violence which has spanned the entirety
of their romantic relationship” and that they “have had incidents of violence up to and even
after this child was removed into DCS’ custody.” In addition, the court found that Mother
“has a history of substance abuse – namely, alcohol, which renders her unable to provide
adequate care for her child at this time.” Therefore, the court concluded that it was in
Josephine’s best interest to remain in the custody of DCS. The juvenile court also entered
an order ratifying the permanency plan that same day.
On August 19, 2012, Mother filed a petition for an order of protection against Father,
alleging that he had, on July 31, 2012, given her a black eye and a broken eye socket and
raped her twice “while [she] was bleeding from [her] broken face.” She also alleged that
Father had “pulled & drug [her] out of [a] car” and “tazed [her] over seven times in a
month.” However, Mother did not show up for the court date or otherwise pursue the order
of protection, so the petition was dismissed. Father eventually pled guilty to domestic assault
with bodily injury.
On October 22, 2012, a revised permanency plan was developed for Josephine. The
plan maintained the original goal of “Return to Parent” or “Exit Custody with Relative,” but
it extended the original goal target date of October 26, 2012, to April 22, 2013, which would
mark approximately one year that Josephine had been in DCS custody. Like the original
plan, the revised plan stated that the conditions preventing Josephine from exiting state
custody included the parents’ unresolved criminal charges, unresolved alcohol and drug
issues, and history of domestic violence. The revised plan noted that Mother was still on
probation due to the charge of child neglect, but it stated that Mother had been compliant
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with the requirements of her probation. It required her to resolve her legal charges, to avoid
incurring any new charges, and to complete the requirements of her probation.
The revised plan stated that Mother had completed an alcohol and drug assessment,
and it required her to follow all recommendations of the assessment by scheduling an intake
appointment for intensive outpatient treatment and medication management by November
1, 2012. The plan required Mother to apply for TennCare by November 1 as well, and to
submit the recommendations from her alcohol and drug and mental health assessments for
a determination of eligibility. According to the plan, Mother agreed to attend AA meetings
and to provide proof of her attendance to DCS. The revised plan noted Mother’s past drug
screens that were positive for THC, and it stated that despite these tests, Mother had
“continually denied use” to DCS. Thus, the revised plan required Mother to continue to
submit to random drug screens.
Regarding domestic violence, the revised plan stated that Mother had been referred
to “Safe Space” for domestic violence support. The plan required Mother to work with Safe
Space to learn appropriate conflict resolution and how to keep herself safe in relationships.
The plan noted that Father had chased Mother with a taser during one altercation since
Josephine had been in DCS custody, and that Mother had sought an order of protection. It
also noted that Father had pled guilty to domestic assault with bodily injury, for which he was
currently on probation.
The revised plan stated that Mother was participating in parenting classes, and it
required her to complete those courses and to demonstrate appropriate parenting skills during
her visits with Josephine. The revised plan required Mother to continue visiting Josephine
every other Thursday at the DCS office. It noted that she had missed her last two visits due
to employment issues.
The revised plan listed continued concerns with Mother’s instability regarding her
housing, employment, and transportation. It listed as one of Mother’s “strengths” that she
was employed and working two jobs – one at a gas station and the other at a cabin rental
agency. However, the plan noted that Mother was still living in hotel rooms and reporting
transportation issues. The plan required Mother to submit proof of income to DCS on a
monthly basis, to demonstrate an ability to access reliable transportation, and to provide proof
of housing appropriate to meet family needs. The plan also noted that Mother had no health
insurance and that she was not paying any child support, despite being ordered to do so some
four months earlier. Mother signed the revised permanency plan, indicating that she
participated in its development and agreed with its provisions, and the plan was ultimately
approved by the juvenile court.
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The juvenile court entered a dispositional order in the dependency and neglect
proceedings on October 24, 2012, holding that Josephine was dependent and neglected
within the meaning of the law and that temporary custody should remain with DCS.3 Father
moved to Florida in November 2012, but at some point he apparently moved back to Georgia,
where Josephine had been born. In late December 2012, Mother also moved back to Georgia
to be near her family.
On January 2, 2013, DCS filed a petition in the juvenile court of Sevier County to
terminate the parental rights of Mother and Father. The petition stated that Josephine had
been in foster care since April 26, 2012, and that she had been adjudicated dependent and
neglected. The petition alleged four grounds for termination. First, it alleged abandonment
by willful failure to support due to the fact that Mother had not provided child support for
Josephine despite being ordered to pay $100 per month beginning in June 2012. Tenn. Code
Ann. § 36-1-113(g)(1); 36-1-102(1)(A)(i). Second, the petition alleged abandonment for
failure to provide a suitable home, specifically alleging that Mother had made no reasonable
effort to provide a suitable home for Josephine since she was removed from Mother’s care,
in spite of reasonable efforts by DCS to assist her in establishing a suitable home. Tenn.
Code Ann. § 36-1-113(g)(1); 36-1-102(1)(A)(ii). Next, the petition alleged that termination
was proper due to Mother’s substantial noncompliance with the permanency plans. Tenn.
Code Ann. § 36-1-113(g)(2). Finally, the petition alleged the existence of persistent
conditions that in all reasonable probability would cause the child to be subjected to further
abuse or neglect and that prevented the child's safe return to Mother’s care. Tenn. Code Ann.
§ 36-1-113(g)(3). The petition asserted that it was in Josephine’s best interest to terminate
Mother’s parental rights. The juvenile court appointed a guardian ad litem for Josephine, and
it appointed counsel for Mother and for Father upon determining that they were indigent.
The petition was heard on July 2, 2013, which happened to be Josephine’s second
birthday. The court heard testimony from DCS case manager Carol Davis, from CASA
volunteer Nancy Rickenbach, from Josephine’s foster father, and from Mother. On August
14, 2013, the trial court entered an order terminating the parental rights of Mother and Father,
finding by clear and convincing evidence that all four grounds for termination had been
proven and that it was in Josephine’s best interest for termination to occur. Mother timely
3
There are two phases to a dependency and neglect proceeding: “the adjudicatory phase in which
the court determines whether a child is dependent and neglected pursuant to Tenn. Code Ann. § 37-1-
129(a)(1), and the dispositional phase where the court ‘proceed[s] immediately or at a postponed hearing to
make a proper disposition of the case’ under Tenn. Code Ann. § 37-1-129(c).” In re Alysia M.S., No.
M2011-02008-COA-R3-JV, 2013 WL 1501710, at *5 (Tenn. Ct. App. Apr. 11, 2013). “Making a ‘proper
disposition’ requires the court to make a custody determination ‘best suited to the protection and physical,
mental and moral welfare of the child.’” Id. (citing Tenn. Code Ann. § 37-1-130(a)).
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filed a notice of appeal to this Court.
II. I SSUES P RESENTED
Mother presents the following issues, slightly restated, for review on appeal:
1. Whether the evidence at trial clearly and convincingly established grounds for
termination of Mother’s parental rights;
2. Whether the evidence at trial showed that DCS failed to make reasonable efforts to
reunify Mother and the child; and
3. Whether the evidence at trial clearly and convincingly established that termination of
Mother’s parental rights was in the best interest of the child.
For the following reasons, we reverse the order of the juvenile court and we remand this
matter for further proceedings as may be necessary.
III. S TANDARD OF R EVIEW
“A biological parent’s right to the care and custody of his or her child is among the
oldest of the judicially recognized liberty interests protected by the Due Process Clauses of
the federal and state constitutions.” In re J.C.D., 254 S.W.3d 432, 437 (Tenn. Ct. App.
2007); In re Audrey S., 182 S.W.3d 838, 860 (Tenn. Ct. App. 2005). Although the parent's
right is fundamental and superior to the claims of other persons and the government, it is not
absolute. In re J.C.D., 254 S.W.3d at 437. A parent's right “continues without interruption
only as long as a parent has not relinquished it, abandoned it, or engaged in conduct requiring
its limitation or termination.” Id.; see also In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct.
App. 2004).
In Tennessee, proceedings to terminate a parent’s parental rights are also governed
by statute. “Parties who have standing to seek the termination of a biological parent's
parental rights must prove two things.” In re Audrey S., 182 S.W.3d at 860; see also In re
M.J.B., 140 S.W.3d at 653. First, they must prove the existence of at least one of the
statutory grounds for termination, which are listed in Tennessee Code Annotated section 36-
1-113(g). Id. Several grounds for termination are listed in subsection (g), but the existence
of any one of the grounds enumerated in the statute will support a decision to terminate
parental rights. In re Angela E., 303 S.W.3d 240, 251 (Tenn. 2010); In re S.R.C., 156
S.W.3d 26, 28 (Tenn. Ct. App. 2004); In re J.J.C., 148 S.W.3d 919, 925 (Tenn. Ct. App.
2004). Second, the petitioner must prove that terminating parental rights is in the child's best
interest, considering, among other things, the factors listed in Tennessee Code Annotated
section 36-1-113(i). In re Audrey S., 182 S.W.3d at 860. In light of the constitutional
dimension of the rights at stake in a termination proceeding, the person seeking to terminate
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these rights must prove all the elements of the case by clear and convincing evidence. In re
Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010) (citing Tenn. Code Ann. § 36-1-113(c); In
re Adoption of A.M.H., 215 S.W.3d 793, 808-09 (Tenn. 2007); In re Valentine, 79 S.W.3d
539, 546 (Tenn. 2002)). In sum, in order to terminate parental rights, a trial court must
determine by clear and convincing evidence not only the existence of at least one of the
statutory grounds for termination but also that termination is in the child's best interest. In
re Adoption of Angela E., 402 S.W.3d 636, 639 (Tenn. 2013); In re F.R.R., III, 193 S.W.3d
528, 530 (Tenn. 2006). Clear and convincing evidence has been defined as “evidence in
which there is no serious or substantial doubt about the correctness of the conclusions drawn
from the evidence.” Id. at 640 (citing In re Valentine, 79 S.W.3d at 546). It produces a firm
belief or conviction in the fact-finder's mind regarding the truth of the facts sought to be
established. In re Audrey S., 182 S.W.3d at 861.
Because of this heightened burden of proof in parental termination cases, on appeal
we must adapt our customary standard of review as set forth in Tennessee Rule of Appellate
Procedure 13(d). In re Audrey S., 182 S.W.3d at 861. First, we review each of the trial
court's specific factual findings de novo in accordance with Rule 13(d), presuming the
finding to be correct unless the evidence preponderates against it. In re Adoption of Angela
E., 402 S.W.3d at 639. Second, we must determine whether the facts (either as found by the
trial court or as supported by the preponderance of the evidence) amount to clear and
convincing evidence that one of the statutory grounds for termination exists. Id. at 639-40.
Whether a statutory ground has been proven by the requisite standard of evidence is a
question of law to be reviewed de novo with no presumption of correctness. In re R.L.F.,
278 S.W.3d 305, 312 (Tenn. Ct. App. 2008) (citing In re B.T., No. M2007-01607-COA-R3-
PT, 2008 WL 276012, at *2 (Tenn. Ct. App. Jan. 31, 2008)).
IV. D ISCUSSION
A. Substantial Noncompliance
One of the grounds for termination asserted in this case is substantial noncompliance
with a permanency plan, pursuant to Tennessee Code Annotated section 36-1-113(g)(2).
Specifically, the statute provides that grounds for termination exist if “[t]here has been
substantial noncompliance by the parent or guardian with the statement of responsibilities
in a permanency plan[.]” Tenn. Code Ann. § 36-1-113(g)(2). As clearly stated in the statute,
in order for a parent’s noncompliance to justify the termination of parental rights, it must be
“substantial.” In re Angel S.F., No. M2012-02089-COA-R3-PT, 2013 WL 1136551, at *5
(Tenn. Ct. App. Mar. 18, 2013) (citing In re S.H., No. M2007–01718–COA–R3–PT, 2008
WL 1901118, at *7 (Tenn. Ct. App. Apr. 30, 2008)). Terminating parental rights based on
this ground “requires more proof than that a parent has not complied with every jot and tittle
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of the permanency plan.” In re M.J.B., 140 S.W.3d 643, 656 (Tenn. Ct. App. 2004). Rather,
“[t]o succeed under Tenn. Code Ann. § 36–1–113(g)(2), the Department must demonstrate
first that the requirements of the permanency plan are reasonable and related to remedying
the conditions that caused the child to be removed from the parent's custody in the first place,
and second that the parent's noncompliance is substantial in light of the degree of
noncompliance and the importance of the particular requirement that has not been met.” Id.
(citations omitted). “Substantial” means “of real worth and importance.” In re Valentine,
79 S.W.3d at 548 (quoting Black’s Law Dictionary 1428 (6th ed. 1990)). “‘Trivial, minor,
or technical deviations from a permanency plan's requirements will not be deemed to amount
to substantial noncompliance.’” In re Abigail F.K., No. E2012-00016-COA-R3-JV, 2012
WL 4038526, at *13 (Tenn. Ct. App. W.S. Sept. 14, 2012) (quoting In re K.E.R., No.
M2006-00255-COA-R3-PT, 2006 WL 2252746, at *5 (Tenn. Ct. App. Aug. 3, 2006)).
Additionally, a parent's “improvement toward compliance should be considered in a parent's
favor.” In re Valentine, 79 S.W.3d at 549 (citing State Dep't of Human Servs. v. Defriece,
937 S.W.2d 954, 961 (Tenn. Ct. App. 1996)).
In response to DCS’s contention about Mother’s lack of effort, Mother asserts that it
was DCS that failed to make reasonable efforts to reunify her with Josephine. Under certain
circumstances, DCS has a statutory obligation to use “reasonable efforts” to preserve, repair,
and restore a parent-child relationship when DCS intervenes in family matters. In re
Bernard T., 319 S.W.3d 586, 599-600 (Tenn. 2010). “Because of the importance of family
relationships, the Tennessee General Assembly has recognized that children should not be
separated from their parents unless the separation is necessary for the children's welfare or
is in the interests of public safety.” Id. at 600 (citing Tenn. Code Ann. § 37-1-101(a)(3);
Tenn. Code Ann. § 37-2-401(a)). Thus, when circumstances do require that children be
separated from their parents, DCS may be required to “use reasonable efforts to make it
‘possible for the child to return safely to the child's home.’” Id. (citing Tenn. Code Ann. §
37-1-166(a)(2), (g)(2)). In addition, when DCS commences a parental termination
proceeding, “it may be required to demonstrate that it has used reasonable efforts to reunify
the family before a court will grant its termination petition.” Id.
To be clear, DCS is not required to use reasonable efforts to reunite a parent with his
or her child every time it removes a child from a parent's custody. In re Bernard T., 319
S.W.3d at 600. For example, reasonable efforts are not required “if a court of competent
jurisdiction has determined that” certain statutorily defined “aggravated circumstances” exist.
Tenn. Code Ann. § 37-1-166(g)(4)(A). In that case, DCS may reasonably forego efforts to
reunify a family and immediately begin termination proceedings. In re Bernard T., 319
S.W.3d at 600. “However, in other circumstances, such as those typically implicated in
Tenn. Code Ann. § 36-1-113(g)(1)–(3), the Department may demonstrate that the child's best
interests will be served by terminating the parent's rights because the parent ‘has failed to
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effect a lasting adjustment after reasonable efforts by available social service agencies for
such duration of time that lasting adjustment does not reasonably appear possible.’” Id.
(quoting Tenn. Code Ann. § 36-1-113(i)(2)). “The decision to pursue a termination of
parental rights on the grounds of abandonment, persistence of conditions, and substantial
noncompliance generally invokes DCS's statutory duty to make reasonable efforts to facilitate
the safe return of a child to the child's home.”4 In re Steven P.D., No. W2011-02489-COA-
R3-PT, 2012 WL 3025151, at *9 (Tenn. Ct. App. July 25, 2012) (citing In re R.L.F., 278
S.W.3d 305, 315 (Tenn. Ct. App. 2008)). In this case, DCS alleged the existence of grounds
(g)(1)-(3), and it acknowledges that it had an obligation to use reasonable efforts to make it
possible for the child to return safely to Mother’s home. However, DCS contends that its
efforts to assist Mother were more than reasonable.
“The General Assembly has characterized the reasonable efforts that the Department
must make as ‘the exercise of reasonable care and diligence by the [D]epartment to provide
services related to meeting the needs of the child and the family.’” In re Bernard T., 319
S.W.3d at 600-601 (citing Tenn. Code Ann. § 37-1-166(g)(1)). Our Supreme Court has
further described DCS’s obligation in this regard as follows:
[T]he manner in which the Department renders services must be reasonable,
not herculean. In re Giorgianna H., 205 S.W.3d [508,] 519 [(Tenn. Ct. App.
2006)]. In addition, the Department is not required to shoulder the burden
alone. The parents must also make reasonable efforts to rehabilitate
themselves and to remedy the conditions that required the removal of the
children. State, Dep't of Children's Servs. v. Estes (In re Q.E.), 284 S.W.3d
790, 800-01 (Tenn. Ct. App. 2008); In re Tiffany B., 228 S.W.3d [148,] 159
[(Tenn. Ct. App. 2007)]. The reasonableness of the Department's efforts
should be decided on a case-by-case basis in light of the unique facts of the
case. In re J.C.D., 254 S.W.3d 432, 446 (Tenn. Ct. App. 2007). Among the
factors that may be used to evaluate the reasonableness of the Department's
reunification efforts are: (1) the reasons for removing the child from the
parent's custody, (2) the parent's physical and psychological abilities and
4
We note that “abandonment” is one of the “aggravated circumstances” listed in Tennessee Code
Annotated section 36-1-102. However, there has been no prior judicial finding of abandonment in this case.
DCS is relieved of its obligation to make reasonable efforts “only if a court of competent jurisdiction has
made a determination” that an aggravated circumstance, such as abandonment, or one of the other statutory
requirements exists. In re A.R., No. M2007-00618-COA-R3-PT, 2007 WL 4357837, at *12 (Tenn. Ct. App.
Dec. 13, 2007 (citing In re B.L.C., No. M2007-01011-COA-R3-PT, 2007 WL 4322068, at *9 (Tenn. Ct. App.
Dec. 6, 2007)). The statute does not allow DCS to do nothing on a parent's case, providing no assistance,
in the hopes that a court will later make a finding of abandonment that retroactively “forgives” its lack of
efforts. Id.; see also In re Steven P.D., 2012 WL 3025151, at *9.
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deficits, (3) the resources available to the parent, (4) the parent's response to
and cooperation with the Department's reunification efforts, (5) the resources
reasonably available to the Department, (6) the duration and extent of the
parent's efforts to address and remedy the conditions that required the removal
of the child, and (7) the closeness of the fit between the conditions that led to
the initial removal of the children, the requirements of the permanency plan,
and the Department's efforts. In re J.C.D., 254 S.W.3d at 446; In re
Giorgianna H., 205 S.W.3d at 519.
Id. at 601 (footnotes omitted). It is clear, then, that “‘[r]easonable efforts entail more than
simply providing parents with a list of service providers and sending them on their way. The
Department's employees must use their superior insight and training to assist parents with the
problems the Department has identified in the permanency plan, whether the parents ask for
assistance or not.’” Estes, 284 S.W.3d at 801 (quoting In re C.M.M., No. M2003-01122-
COA-R3-PT, 2004 WL 438326, at *7 (Tenn. Ct. App. Mar. 9, 2004)). However, DCS “does
not have the sole obligation to remedy the conditions that required the removal of the
children from their parents’ custody.” In re Giorgianna H., 205 S.W.3d at 518. When
reunification of the family is a goal, the parents share responsibility for addressing the
conditions that led to removal. Id. Reunification is a “two-way street,” and the law does not
require DCS to carry the entire burden of this goal. State Dep't of Children's Servs. v.
S.M.D., 200 S.W.3d 184, 198 (Tenn. Ct. App. 2006). If parents desire the return of their
children, they must also make “reasonable and appropriate efforts to rehabilitate themselves
and to remedy the conditions that required the Department to remove their children from their
custody.” In re Giorgianna H., 205 S.W.3d at 519 (citing State Dep't of Children's Servs.
v. B.B.M., No. E2004-00491-COA-R3-PT, 2004 WL 2607769, at *7 (Tenn. Ct. App. Nov.
17, 2004); In re C.M.M., 2004 WL 438326, at *7; In re R.C.V., No. M2001-02102-COA-R3-
JV, 2002 WL 31730899, at *12 (Tenn. Ct. App. Nov. 18, 2002)).
In sum, DCS has the burden to prove by clear and convincing evidence that it
exercised reasonable care and diligence to provide services reasonably necessary to meet
Mother’s needs to assist her with fulfilling her obligations under the permanency plans. See
In re R.L.F., 278 S.W.3d at 316 (citing In re Valentine, 79 S.W.3d at 546; In re C.M.M.,
2004 WL 438326 at *8; Tenn. Code Ann. § 36-1-113(c)). Accordingly, we must determine
whether DCS presented “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.” In the Matter of J.L.E., No.
M2004-02133-COA-R3-PT, 2005 WL 1541862, at *12 (Tenn. Ct. App. June 30, 2005)
(citing In re C.M.M., 2004 WL 438326, at *8). Mother does not explain in her brief on
appeal how DCS’s efforts to assist her were allegedly deficient. Her brief lists as an issue
whether the evidence at trial “showed that the Tennessee Department of Children’s Services
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failed to make reasonable effort to reunify child and parent.” However, there is no
corresponding argument section contained in her brief to explain the basis of this argument.
Nevertheless, in light of the importance of Mother’s rights at stake, we must consider the
adequacy of DCS’s efforts to reunite Mother and Josephine, along with the sufficiency of
Mother’s efforts to comply with the requirements of the permanency plan. When a
termination proceeding involves grounds that implicate DCS’s obligation to exert reasonable
efforts to reunite a child and parent, “establishing that it made reasonable efforts . . . is an
essential ingredient of the Department's case,” and “the Department has the burden of
proving its reasonable efforts even when the parent has not questioned the adequacy of its
efforts.” In re C.M.M., 2004 WL 438326, at *7 (citing Tenn. Code Ann. § 37-1-166(b)).
Because the parental termination statute addresses “substantial noncompliance by the
parent or guardian with the statement of responsibilities in a permanency plan,” Tenn. Code
Ann. § 36-1-113(g)(2) (emphasis added), we will begin by examining the numerous
responsibilities set forth for Mother in the permanency plans in this case. The first
“responsibility” listed for Mother was to visit with Josephine every other Thursday at the
DCS office, and to provide diapers, wipes, a snack and drink, and toys during the visits.
After Josephine was taken into DCS custody in April 2012, Mother attended visits with her
every month, between one and three times per month, until Mother moved to Georgia in
December 2012. Thereafter, she visited with Josephine once in January and once in February
2013, and then she had no more visits until the time of trial on July 2, 2013. DCS case
manager Carol Davis testified that she had been assigned to Josephine’s case since Josephine
entered DCS custody in April 2012 at the age of nine months and that she had supervised all
of Mother’s visits with Josephine. Ms. Davis testified that Mother exhibited appropriate
behavior during her visits and brought toys and snacks for Josephine.
From our review of the record, it appears to this Court that DCS made little effort to
assist Mother with transportation for visits, although the permanency plan expressly required
DCS to assist with transportation to and from visits if needed. Both permanency plans noted
as a “concern” that Mother had self-reported transportation issues and “limited access to
transportation.” Mother did not have a driver’s license, and she testified at trial that she
generally walked to the visits, from her hotel room, or took the trolley. She testified that
when she was unable to visit, it was due to transportation problems. She explained that when
the tourist season ended, the trolley stopped running and cold weather set in. Mother testified
that Josephine’s foster father offered to drive her to and from some visits. Ms. Davis
conceded that DCS only provided Mother with transportation for one visit. Ms. Davis also
testified that she never offered transportation assistance to Mother after Mother moved to
Georgia, stating, “[Mother] has not requested that or told me that that was an issue for her.”
However, we find this testimony suspect because Ms. Davis also testified that Mother missed
a visit in early February, after she moved to Georgia, “due to transportation issues.” Mother
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testified at trial that in order to travel to Tennessee, she had to take time off from work, and
have someone else take time off from work in order to drive her here, in addition to paying
for a rental car, gasoline, and a hotel room. Interestingly, Ms. Davis was asked if it is
possible for DCS to communicate with agencies in other states regarding a parent’s case, and
specifically, whether Ms. Davis could make a “referral” to the Georgia equivalent of DCS
for assistance for Mother in complying with a permanency plan. Ms. Davis said, “If there
were just some small things that they might could help with, that would be appropriate.”
Counsel for Mother asked if that would include “transportation or facilitating visits or
something of that nature,” and Ms. Davis responded affirmatively. Ms. Davis testified that
the Georgia equivalent of DCS contacted her in April 2013 to inquire about the need for
supervision if the child was ultimately placed with Mother, but aside from this issue, Ms.
Davis said she did not request any services for Mother from the Georgia agency.
Despite DCS’s lack of assistance with transportation, Mother did manage to regularly
visit with Josephine at least once per month for the eight months that Josephine was in DCS
custody prior to Mother’s move to Georgia, and she visited two times after the move. As a
result, we cannot say that Mother failed to substantially comply with the visitation
requirement of the permanency plan.
Another “action step” listed for Mother in the permanency plan was to complete an
alcohol and drug assessment and to follow all recommendations of the assessment. Mother
actually completed three alcohol and drug assessments in the year after Josephine entered
DCS custody, two at her own expense. In August 2012, Mother paid for an assessment by
one of the providers that was listed as an acceptable option in the permanency plan.5 The
provider of this first assessment did not recommend alcohol treatment for Mother but did
recommend that Mother attend domestic violence and parenting classes and continue with
random drug screening.6 In October 2012, Mother completed a second alcohol and drug
assessment, at another facility, that was funded by the State. “Due to the risk of alcohol use,”
this assessment recommended intensive outpatient treatment, which Mother never completed.
However, Ms. Davis acknowledged at trial that Mother was uninsured at the time of this
5
Ms. Davis testified that she submitted a case service request for the State of Tennessee to pay for
the alcohol and drug assessment for Mother, and the request was approved. When asked why Mother paid
for this assessment herself, Ms. Davis explained, “A request had gone in and was approved in our system
for June or July for her. It's my belief that she wanted to go ahead and do that on her own. I don't know if the
provider had trouble locating her or what happened; but, at any rate, she went ahead and did that.” DCS
records indicate that Mother had called Ms. Davis in July 2012 “to request that her mental health and A&D
assessments be started.”
6
These assessments are not included in the record. Our discussion of the recommendation from
each assessment is based upon the testimony of Ms. Davis at trial.
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recommendation. The October 2012 revised permanency plan required Mother to apply for
TennCare and to submit her diagnosis and assessment recommendation for a determination
of eligibility, but there is no evidence in the record to suggest that DCS made any attempt to
assist Mother in this endeavor. Likewise, there is nothing to suggest that DCS made any
other effort to assist Mother with obtaining the recommended intensive outpatient treatment.
The permanency plan listed some names and addresses of providers “for Alcohol & Drug and
Mental Health Assessments and Treatment” for both Mother and Father. However, as noted
above, in order to constitute reasonable efforts by DCS, they must do “more than simply
providing parents with a list of service providers and sending them on their way.” Estes, 284
S.W.3d at 801; see also In re A.R., 2007 WL 4357837, at *5 (“the Department must do more
than merely provide a list of services to the parent, point them in the right direction, and rely
on parents to facilitate their own rehabilitation”).
Mother completed the third alcohol and drug assessment, again at her own expense,
after she moved to Georgia. It appears that this assessment was completed in May 2013, just
weeks before the July 2 termination hearing. It is unclear what agency recommended this
assessment, as Ms. Davis simply testified that “[w]hen [Mother] went to Georgia, it's my
understanding that they wouldn't accept her assessments that she had done here, that they
wanted another assessment updated.” As a result, Mother paid for a third assessment in
Georgia. According to Mother, the third assessment did not recommend any type of
intensive outpatient treatment, but according to Ms. Davis, the third assessment did
recommend a psychological evaluation “due to emotional concerns.”
Given that Mother completed three separate alcohol and drug assessments, two at her
own expense, and considering DCS’s failure to assist Mother with following the
recommendations of these assessments, we find that Mother made significant efforts to
comply with this aspect of the permanency plan.
The permanency plan also required Mother to attend AA meetings in order to maintain
sobriety and to provide proof of her attendance to DCS. Mother testified at trial that she had
been attending AA meetings in Georgia, usually once a week, at two local churches. She
submitted a piece of paper that had numerous dates, locations, and signatures listed, and
Mother claimed that this document evidenced her attendance at AA meetings. She explained
that she had someone to sign the document at each meeting, and usually that person was her
“sponsor.” According to the document, Mother had attended three AA meetings each month
during February, March, April, and May 2013. At trial, Ms. Davis acknowledged that
Mother had informed her that she was attending AA meetings; however, Ms. Davis said she
had asked Mother to fax her documentation of attendance and that Mother had not done so.
Nevertheless, we find that Mother has made appreciable efforts to comply with this
requirement of the permanency plan.
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Another responsibility for Mother was to “submit to random drug screens as per DCS
request.” DCS records reflect that Mother submitted to random drug screens on May 9, May
31, June 14, and July 12, 2012, and she tested positive for THC on each of these occasions.
Mother tested negative on August 9, September 12, and September 20. On November 29,
Mother was asked to submit to a urine drug screen but stated that she was unable to give a
urine sample. Although DCS apparently did not test Mother after that date, Mother testified
at trial that she was being drug tested in conjunction with her AA meetings and that she was
passing the tests. Thus, we cannot say that Mother failed to substantially comply with the
permanency plan’s requirement that she submit to random drug screens.
The permanency plans also required Mother to resolve her pending criminal charge
for child neglect and to avoid incurring any new charges.7 Mother was on probation for the
child neglect charge throughout the duration of the lower court proceedings. The October
2012 revised permanency plan required Mother to cooperate with her probation officer and
to complete the requirements of her probation, but it listed as a strength for Mother that she
“has been compliant with probation requirements.” Nevertheless, at the time of trial in July
2013, Mother acknowledged that she was no longer in compliance with the requirements of
her probation due to her failure to pay court costs and her inability “to show up” due to “not
being able to come up here [to Tennessee] as often[.]” Mother was asked if she was aware
that she had been charged with violating the terms of her probation, and she responded that
she was not aware of any such charge. However, the trial court’s final order in this matter
states, “The mother is also currently facing a violation of probation warrant, which will be
served on her at the conclusion of the termination hearing.” Accordingly, we find that
Mother did fail to substantially comply with the permanency plan’s requirement that she
resolve her pending legal charge and complete the requirements of her probation.
The permanency plan required Mother to complete age-appropriate parenting classes,
to submit proof of completion to DCS, and to demonstrate appropriate parenting during visits
with Josephine. The record before us contains a letter from the foundation that provided the
parenting classes that Mother attended, praising Mother’s efforts, stating that she “has been
easy to schedule home visits with and has kept all scheduled home visits,” and that she “is
easy to communicate with and participates in what's being discussed.” Mother completed
the parenting classes, which were funded by the State, in November of 2012, and Ms. Davis
testified at trial that Mother exhibited appropriate behavior when she visited with Josephine.
Therefore, Mother sufficiently complied with this requirement.
7
The affidavits of reasonable efforts completed by Ms. Davis during the pendency of this case state
that Mother was arrested for telephone harassment, but that the charge was ultimately dismissed, and she was
arrested for public intoxication on another occasion. However, there was no testimony about these arrests
during the trial.
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The next requirement at issue is a mental health assessment. The permanency plan
explicitly stated that “[Father] will attend a mental health intake and will follow all
recommendations,” but there was no explicit requirement that Mother complete a mental
health assessment. Still, the permanency plan listed as an “action step” that, “If uninsured
and unable to pay for assessments, [Ms. Davis] will submit a request for non-TennCare
eligible A&D Assessment and Mental Health Assessment for [Mother].” (Emphasis added).
This “action step” was listed inside a box with other obligations, such as attending AA
classes and submitting to random drug screens, and the “responsible person(s)” listed were
Mother and Ms. Davis.8 The revised plan also stated that Mother “will apply for TennCare
insurance at DHS and will submit her diagnosis/recommendations from A&D and mental
health assessments for determination of eligibility.” (Emphasis added). Regardless of the
uncertainty that we perceive in the permanency plan, however, it is undisputed that Mother
did complete a mental health assessment that was funded by the State. This assessment
recommended that Mother complete a medication management evaluation and attend
counseling. Again, however, Ms. Davis acknowledged that Mother did not have health
insurance at the time of these recommendations. The permanency plan simply instructed
Mother to apply for TennCare and to submit the recommendations for a determination of
eligibility; however, there is no proof of any effort by DCS to help Mother with this process
or to otherwise secure the needed counseling or medication management evaluation for
8
This Court has previously criticized DCS for failing to include a section in a permanency plan
clearly listing a parent’s responsibilities. In In re Abigail F.K., No. E2012-00016-COA-R3-JV, 2012 WL
4038526, at *13 (Tenn. Ct. App. Sept. 14, 2012), the permanency plan was “confusing” and set forth various
“concerns,” “desired outcomes,” and “actions steps,” like those in the permanency plan in this case, rather
than a clear statement of responsibilities. We said:
This omission is not a mere technicality. As we have noted in a previous case: “[T]he statute
that sets out this ground for termination states that parental rights may be terminated where
there is substantial noncompliance ‘with the statement of responsibilities’ in the permanency
plan.” In re Askia K.B., [No. W2010–02496–COA–R3–PT], 2011 WL 4634241, at *9
[(Tenn. Ct. App. Oct. 7, 2011)] (quoting Tenn. Code Ann. § 36-1-113(g)(2)) (emphasis in
original). See also State of Tenn. Dep't of Children's Servs. v. P.M.T., No. E2006-00057-
COA-R3-PT, 2006 WL 2644373, at *8; 2006 Tenn. App. LEXIS 608, at *23–24 (Tenn. Ct.
App. Sept. 15, 2006) (“Tenn. Code Ann. § 36-1-113(g)(2) does not require substantial
compliance with a permanency plan's ‘[d]esired outcome[s],’ rather it requires substantial
compliance with a plan's statement of responsibilities”). Moreover, the statement of
responsibilities serves a substantive purpose. If the parent is required to comply with the
permanency plan, then the permanency plan should clearly communicate to the parent: this
is what you must do to regain custody of your child. That is the purpose of the parent's
statement of responsibilities. Thus, the absence of a clearly marked “statement of
responsibilities” for Mother in the permanency plan is a significant problem. It is difficult
for the Court to find that Mother failed to substantially comply with the plan's statement of
responsibilities if the plan does not contain one.
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Mother. Ms. Davis testified that when Mother moved to Georgia she became ineligible for
TennCare. Nevertheless, shortly after moving to Georgia, Mother provided Ms. Davis with
a letter stating that she was beginning counseling with a doctor there. Mother later informed
Ms. Davis that she had quit going to the counselor because she did not find the counselor’s
advice useful. At trial, Mother conceded that she only went to the counselor “once, maybe
twice,” explaining that she was paying for the counseling sessions herself, at a cost of $70
an hour, and that the counselor advised Mother to drink herbal tea and listen to soothing CDs
before bed. Regarding the recommended medication management evaluation, Mother simply
testified that she was not comfortable with “being put on drugs.” To the extent that the
permanency plans can be construed as requiring Mother to complete a mental health
assessment and to comply with its recommendations, we find that she partially complied with
this requirement and that DCS made little effort to assist Mother in her endeavor.
Next, the permanency plan required Mother to submit proof of legal income to DCS
on a monthly basis, to provide proof of housing appropriate to meet family needs, and to
show an ability to access reliable transportation. At trial, Ms. Davis acknowledged that
Mother had attempted to obtain and maintain employment while she was residing in
Tennessee. Mother’s discovery responses indicated that she had worked at approximately
nine different jobs from the time that Josephine entered custody until the date of the
discovery responses, a period of roughly a year. Mother testified at trial about at least four
jobs that she had held in Georgia. Mother worked mostly at hotels, cabin rental agencies,
restaurants, grocery stores, and gas stations, often working two jobs at once.9 Mother
testified that the longest time period that she had been unemployed while Josephine had been
in DCS custody was “[m]aybe two or three months,” and that this period of unemployment
was around the time that she moved to Georgia. While in Tennessee, Mother resided in
motels and cabins.
DCS records indicate that Mother regularly reported to Ms. Davis regarding her
employment situation. For example, in May 2012, Mother telephoned Ms. Davis and
reported that she was living and working at a resort. In July, Mother called Ms. Davis and
reported that she was working at a restaurant and living at a lodge. In September, Mother
provided proof of her employment at a gas station in the form of a paystub, and she also
submitted a renter’s lease from the lodge. The October 2012 permanency plan listed as one
of Mother’s “strengths” that she was working two jobs – one at a gas station and one at a
9
It is unclear why Mother left her jobs in Tennessee. She testified that one employer in Georgia
fired her after a week and a half when he found out about her criminal record. She testified that she quit
another job at a Georgia restaurant after “a couple of days” because she determined it was not going to be
“profitable” due to the fact that she did not have a license to serve alcohol or the funds to obtain it. At the
time of trial, Mother was working part-time for a cleaning company that cleaned apartments.
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lodge. In November 2012, Mother informed DCS that she quit her job at the gas station
because she was moving to Sevierville and transportation would have been too difficult.
Later that month, Mother reported moving out of other “housing” because of safety concerns,
and she stated that she was living in a cabin and doing online work for the landlord. Ms.
Davis testified that Mother also provided proof of her employment at two pizza restaurants
at some point while she was living in Tennessee. Mother had informed Ms. Davis about two
jobs she had after moving to Georgia, one at a restaurant and one at a grocery store. Mother
reported her new address in Georgia just days after moving, on January 8, 2013. In April
2013, Mother contacted Ms. Davis and asked that the ICPC process be initiated for an
evaluation of her home. Ms. Davis testified that Mother never provided her with a copy of
her lease from her housing in Georgia, but Mother did produce a copy of the lease and
photographs of the home at trial. Mother also testified that she had previously mailed a copy
of the lease to Ms. Davis, although Ms. Davis denied receiving it. The ICPC evaluation had
not been completed as of the date of trial, but Mother testified that she had been in contact
with the Georgia equivalent of DCS and that the in-home evaluation was scheduled for the
week after trial.
In contrast to Mother’s efforts, we find no proof to suggest that DCS made any effort
to assist Mother with housing or with employment issues. The permanency plans simply
required Mother to submit proof of stable employment and housing, with no assistance,
guidance, or instruction by DCS to help Mother attain these goals. Ms. Davis testified, in
general, that there was nothing that Mother ever asked for that DCS did not provide for her.
However, “[t]he Department's employees must use their superior insight and training to assist
parents with the problems the Department has identified in the permanency plan, whether the
parents ask for assistance or not.” Estes, 284 S.W.3d at 801. In light of DCS’s failure to
make any effort to assist Mother with housing or employment issues, we find that Mother’s
efforts to comply with each of these requirements were meaningful and significant, and that
she did not substantially fail to comply with these requirements of the permanency plan.10
Finally, the permanency plans required Mother to “attend non-offender domestic
assault classes to completion, to learn appropriate conflict resolution and how to keep herself
safe in relationships.”11 DCS first referred Mother to a local community health facility,
which recommended that she attend six one-on-one sessions over a period of six weeks.
Mother began these sessions as directed, but approximately halfway through her completion
10
There was no evidence presented regarding whether Mother failed to comply with the permanency
plan's requirement that she submit a monthly budget to DCS, so we will not consider the issue.
11
Mother testified at trial that she and Father had been separated for at least six months at the time
of trial and that she no longer had contact with him.
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of the six-week program, the facility closed. Ms. Davis then referred Mother to “Safe
Space,” which, according to Ms. Davis, provides support to victims of domestic violence.
Mother testified at trial that “they put [her] in a home in Knoxville” with several other
women, but that she left after about a week and a half because she was offered a job in
Pigeon Forge for which she had previously applied, so she “came back and took the job and
left Safe Space.” Mother also testified that she felt she could do better on her own because
the group home was in a part of town where it was dangerous to go outside at night, and the
facility was filthy and rat-infested. Thus, Mother acknowledged at trial that she had “not
completely” fulfilled the permanency plan’s requirement that she attend non-offender
domestic assault classes “to completion.” Notably, however, there was no proof to suggest
how long Safe Space recommended that Mother stay there. The permanency plan did not
require Mother to move into a group home. The original plan only required her to complete
“non-offender domestic assault classes,” and Mother completed half of the recommended
program before her classes were cancelled through no fault of her own. The revised plan
required Mother to “work with Safe Space to learn appropriate conflict resolution and how
to keep herself safe in relationships,” and Mother moved into the group home in a nearby
county. As such, we again find that Mother made legitimate strides to complete this
requirement and that she did not fail to substantially comply with this portion of the
permanency plan.
Considering the entire record before us, we find that the evidence presented did not
clearly and convincingly establish that Mother failed to substantially comply with the terms
and conditions of the permanency plans. Mother made substantial financial expenditures in
an attempt to comply with the numerous requirements of the permanency plans, in spite of
her limited financial resources, and she made legitimate attempts to comply with each
requirement of the permanency plan. Although she was not fully successful with regard to
every requirement, we cannot say that the overall degree of her noncompliance was
substantial. Thus, the statutory ground of failure to substantially comply with a parenting
plan as set forth in Tennessee Code Annotated § 36–1–113(g)(2) has not been established
by the requisite proof, and we reverse the trial court’s finding that this ground was proven.
We also note one other concern we have with DCS’s efforts in this case. The revised
permanency plan listed a goal target date of April 2013, which would have marked one year
since Josephine entered DCS custody. It is undisputed that Mother called Ms. Davis in
December 2012 to inquire as to whether a move to Georgia would affect her chances of
gaining custody of Josephine, and Ms. Davis, by her own admission, told Mother that “she
must live where she feels she can best find support and complete the action steps on her
permanency plan.” According to Ms. Davis, Mother informed her “that she just didn't have
the support that she needed here and she was having a hard time making it here. She felt she
could do better if she was back in Georgia near her family.” Mother also conveyed to Ms.
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Davis that she “felt confident that she could get in a better place if she moved and that she
could handle meeting her Perm Plan requirements.” In response, Ms. Davis told Mother to
inform her when she felt she was stable in order for her home in Georgia to be evaluated
through ICPC. When Mother moved shortly after this conversation, around December 29,
DCS filed the petition to terminate Mother’s parental rights almost immediately, on January
2. “Although we agree that the public policy of this State is to avoid leaving children in the
limbo of foster care any longer than necessary, we also believe that parents must be given,
as realistic under the specific facts of each case, a real opportunity to make adjustments to
their lifestyle to regain custody of their children.” In re C.H.E.H., No.
E2007-01863-COA-R3-PT, 2008 WL 465275, at *11 (Tenn. Ct. App. Feb. 21, 2008). Here,
Mother contacted DCS and specifically inquired as to whether a move to Georgia would
affect her chances of gaining custody of Josephine, and in response, Ms. Davis assured
Mother that she should live where she felt she would have the most support. When Mother
heeded that advice and moved, DCS immediately changed course and filed a petition to
terminate Mother’s parental rights, essentially giving up on Mother. If DCS intended to file
a termination petition based upon Mother’s decision to move, Ms. Davis should have
provided Mother with that information when they discussed the possibility of her moving
while Mother was still in Tennessee.
Based on the totality of the circumstances in this case, we find that DCS failed to
present clear and convincing evidence that it made reasonable efforts to assist Mother and
to reunify her with Josephine. Basically, DCS supervised Mother’s visits with Josephine; it
provided her with transportation to a single visit; it submitted the necessary requests for
funding for Mother’s parenting classes, alcohol and drug assessment, and mental health
assessment; it provided Mother with the names of providers for domestic violence classes;
and it administered Mother’s drug screens. From the evidence before us, it appears that DCS
failed to satisfy its responsibility of assisting Mother with transportation to and from visits
when needed, despite her reports of transportation problems; it made no effort to help Mother
obtain the intensive outpatient treatment recommended by the alcohol and drug assessment;
it made no attempt to aid Mother with obtaining counseling or a medication management
evaluation as recommended by the mental health assessment; it failed to assist Mother with
the requirement that she apply for TennCare and submit her diagnoses for a determination
of eligibility; it wholly failed to make an effort to assist Mother or even provide her with
guidance concerning her unstable housing and her employment problem; and it made no
attempt to communicate with the Georgia agency to request support services for Mother after
she moved (aside from sending the request for the ICPC home study, which Mother
specifically requested). In our view, there is no clear and convincing evidence that DCS
exercised “reasonable care and diligence” to provide the services needed by Mother in order
to assist her with accomplishing the requirements of the permanency plan. In re Bernard
T., 319 S.W.3d at 600-601 (citing Tenn. Code Ann. § 37-1-166(g)(1)). DCS simply failed
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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.” In the Matter of J.L.E., 2005 WL 1541862,
at *12. The trial court’s finding that DCS made reasonable efforts is hereby reversed.
B. Abandonment
The most frequently asserted ground for termination listed in the termination statute
is abandonment. In re Audrey S., 182 S.W.3d at 862. For purposes of terminating parental
rights, there are five alternative definitions of abandonment listed in Tennessee Code
Annotated section 36-1-102(1)(A)(i)-(v). Here, DCS alleged abandonment for failure to
support and abandonment for failure to provide a suitable home, pursuant to the first two
definitions of abandonment.
1. Failure to Support
Tennessee Code Annotated section 36-1-102(1)(A)(i) defines abandonment, in
pertinent part, as follows:
(i) 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) . . . of the child who is the subject of the petition for termination of
parental rights or adoption, that the parent(s) . . . have willfully failed to
support or have willfully failed to make reasonable payments toward the
support of the child;
For purposes of the statute, “‘willfully failed to support’ or ‘willfully failed to make
reasonable payments toward such child's support’ means the willful failure, for a period of
four (4) consecutive months, to provide monetary support or the willful failure to provide
more than token payments toward the support of the child.” Tenn. Code Ann. § 36-1-
102(1)(D). “Token support” means that “the support, under the circumstances of the
individual case, is insignificant given the parent's means.” Tenn. Code Ann. § 36-1-
102(1)(B). A parent’s “means” includes “both income and available resources for the
payment of debt.” In re Adoption of Angela E., 402 S.W.3d at 641 (citing In re Z.J.S., No.
M2002-02235-COA-R3-JV, 2003 WL 21266854, at *11 n. 24 (Tenn. Ct. App. June 3, 2003);
Black's Law Dictionary 1070 (9th ed. 2009)).
A parent cannot be said to have abandoned a child when his or her failure to support
is due to circumstances outside his control. In re Adoption of Angela E., 402 S.W.3d at 640.
Consequently, in order to prove the ground of abandonment for failure to support, the
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petitioner must establish by clear and convincing evidence that the parent who failed to
support “had the capacity to do so, made no attempt to do so, and had no justifiable excuse
for not doing so.” Id. (citing In re Audrey S., 182 S.W.3d at 864). Whether a parent failed
to support a child is a question of fact; however, the issue of whether a parent’s failure to
support constitutes willful abandonment is a question of law, which we review de novo with
no presumption of correctness. Id. (citing In re Adoption of A.M.H., 215 S.W.3d 793, 810
(Tenn. 2007)).
The trial court found that Mother was aware of her duty to support, that she “had the
capacity to provide support and had no justifiable excuse for not paying support.” It is true
that Mother had been ordered to pay $100 per month in child support beginning in June 2012,
and she never paid any amount toward child support while Josephine was in DCS custody,
aside from toys or food that she brought to visits with Josephine. Mother also confirmed at
trial that she was not disabled in a manner that would prevent her from working. However,
there was little to no evidence presented at trial regarding Mother’s income and expenses.
The relevant time period for establishing Mother’s willful failure to support is the four-month
period prior to the filing of the termination petition on January 2, 2013. As previously noted,
Mother worked for short periods at numerous jobs while Josephine was in DCS custody, and
she sometimes worked two jobs at once. The October 2012 revised permanency plan listed
as a “strength” for Mother that she was working two jobs. Mother provided DCS with a copy
of a renter’s lease in September 2012 indicating that she was paying rent of $175 per week,
and in November, Mother reported that she was living in a cabin, paying rent of $500 per
month. In December 2012, Mother reported that she had been ill for weeks and unable to
afford her medications. She testified at trial that “money started running out” when it
became cold outside and there were no tourists. Mother testified that her longest period of
unemployment was a period of around two to three months after she moved to Georgia,
which means, after the termination petition was filed.
Mother testified that no one was giving her financial assistance during these
proceedings, and that in addition to the assessment and counseling expenses she incurred, she
was required to pay for her rent, bills, transportation costs, food, and toiletries that were not
covered by her food stamps. Mother also conceded that during “a lot of this” she was still
involved with Father, and that he only worked “[e]very once in a while . . . doing the time
share thing, but it wasn’t really reliable,” so Mother was the primary breadwinner. Mother
testified that she spent “a lot” of money on the two assessments that she had performed at her
own expense. Mother was asked to give “a rough estimate as to the total amount of finances
[she had] expended during this case,” and her estimate was over $2,000. Mother testified
that her gross income in 2012 was $5,788, although she said that this figure did not include
“tips for waitressing and stuff.”
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Even though it is undisputed that Mother did not pay any child support for Josephine
during the relevant four-month period, we find that DCS failed to prove by clear and
convincing evidence that Mother had the capacity to support Josephine and had no justifiable
excuse for not doing so. See In re Adoption of Angela E., 402 S.W.3d at 640-41 (reversing
a finding of willful failure to support where there was no evidence concerning a parent’s
monthly expenses, even though the parent was earning $150,000 annually). It was not
enough for DCS to simply prove that Mother was not disabled during the relevant timeframe.
Furthermore, DCS was required to prove that it made reasonable efforts to assist Mother in
order to satisfy this ground for termination, and we have already concluded that DCS failed
to meet its burden. Accordingly, we reverse the trial court’s finding that grounds for
termination existed based upon abandonment for failure to support.
2. Failure to Provide a Suitable Home
The next ground alleged by DCS was abandonment for failure to provide a suitable
home. The relevant statutory definition of abandonment states:
(ii) The child has been removed from the home of the parent(s) . . . as the
result of a petition filed in the juvenile court in which the child was found to
be a dependent and neglected child, as defined in § 37-1-102, and the child
was placed in the custody of the department or a licensed child-placing agency,
that the juvenile court found, or the court where the termination of parental
rights petition is filed finds, that the department or a licensed child-placing
agency made reasonable efforts to prevent removal of the child or that the
circumstances of the child's situation prevented reasonable efforts from being
made prior to the child's removal; 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. The efforts of the department or agency to
assist a parent or guardian in establishing a suitable home for the child may be
found to be reasonable if such efforts exceed the efforts of the parent or
guardian toward the same goal, when the parent or guardian is aware that the
child is in the custody of the department[.]
Tenn. Code Ann. § 36-1-102(1)(A)(ii). The trial court found that Josephine was removed
from Mother’s home and placed into DCS custody, and that the juvenile court had previously
adjudicated Josephine dependent and neglected and found that it was reasonable for DCS to
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make no effort to maintain the child in the home due to the circumstances. The trial court
further found that DCS made reasonable efforts to assist Mother in establishing a suitable
home for the child, and that Mother did not make any reasonable effort to provide a suitable
home. Accordingly, the court concluded that grounds for termination existed.
In order to satisfy this definition of abandonment, we must be able to find by clear and
convincing evidence that for a period of four months following Josephine’s removal, DCS
“made reasonable efforts to assist [Mother] to establish a suitable home for the child[.]”
Tenn. Code Ann. § 36-1-102(a)(1)(A). DCS’s efforts “may be found to be reasonable if such
efforts exceed the efforts of the parent or guardian toward the same goal, when the parent or
guardian is aware that the child is in the custody of the department[.]” Id. From the record
before us, we cannot conclude that DCS met its burden with respect to the ground of failure
to provide a suitable home by clear and convincing evidence. Specifically, there is no
evidence in the record to suggest that DCS made any effort to assist Mother with housing.
The permanency plan simply noted that Mother was living in motel rooms, it required her to
provide proof of stable housing “appropriate to meet family needs,” and it stated that DCS
would evaluate Mother’s home for safety and space prior to any trial home placement.
Again, “its efforts do not need to be ‘Herculean,’ [but] DCS is required to use its ‘superior
insight and training to assist parents with the problems the Department has identified in the
permanency plan, whether the parents ask for assistance or not.’” In re Isobel V.O., No.
M2012-00150-COA-R3-PT, 2012 WL 5471423, at *8 (Tenn. Ct. App. W.S. Nov. 8, 2012)
(citing Estes, 284 S.W.3d at 801). In Isobel V.O., for example, we held that DCS failed to
prove by clear and convincing evidence that it used reasonable efforts to assist parents with
establishing a suitable home where the only effort DCS made with respect to housing was
to provide them with a list of possible housing options. Id. We have likewise found a lack
of clear and convincing evidence of abandonment for failure to provide a suitable home
where DCS “offered no evidence of efforts it made to help Mother obtain suitable housing
at any time.” In re C.H.E.H., No. E2007-01863-COA-R3-PT, 2008 WL 465275, at *11
(Tenn. Ct. App. Feb. 21, 2008); see also In re K.E.R., No. M2006-00255-COA-R3-PT, 2006
WL 2252746, at *7 (Tenn. Ct. App. Aug. 3, 2006) (reversing termination on this ground
where it was “unclear whether the Department made any efforts to help Mother procure
housing” during the relevant timeframe).
Here, we simply cannot say that DCS presented clear and convincing evidence that
it made reasonable efforts to assist Mother in establishing a suitable home.12 Therefore, we
12
We recognize that “abandonment by failure to provide a suitable home is not limited to the
parents' physical home; a home may be rendered unsafe and unsuitable by the conduct of its occupants.” In
re Joshua S., No. E2010–01331–COA–R3–PT, 2011 WL 2464720, at *18 (Tenn. Ct. App. W.S. June 16,
(continued...)
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must conclude that the record does not contain sufficient evidence to establish this ground
for termination, and the trial court’s finding on the ground of abandonment for failure to
provide a suitable home must be reversed.
C. Persistent Conditions
Finally, we must consider the ground for termination that is commonly referred to as
“persistence of conditions,” defined in Tennessee Code Annotated section 36-1-113(g)(3)
as follows:
(3) 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:
(A) The conditions that led to the child's removal or other conditions that in all
reasonable probability would cause the child to be subjected to further abuse
or neglect and that, therefore, prevent the child's safe return to the care of the
parent(s) or guardian(s), still persist;
(B) 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
(C) 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[.]
The purpose behind the “persistence of conditions” ground for terminating parental rights
is “to prevent the child's lingering in the uncertain status of foster child if a parent cannot
within a reasonable time demonstrate an ability to provide a safe and caring environment for
the child.” In re D.C.C., No. M2007-01094-COA-R3-PT, 2008 WL 588535, at *9 (Tenn.
Ct. App. Mar. 3, 2008). In cases involving the “persistence of conditions” ground, DCS is
not required to prove that a parent-child relationship cannot be salvaged, nor is DCS required
to show that a parent is “currently harmful” to a child's safety or future emotional stability.
In re K.A.H., No. M1999-02079-COA-R3-CV, 2000 WL 1006959, at *5 (Tenn. Ct. App.
July 21, 2000). The termination of parental rights statutes recognize a child's need for a
permanent, stable environment. Id. Accordingly, the question is the likelihood that the child
12
(...continued)
2011) (citing In re Morgan S., No. E2009–00318–COA–R3–PT, 2010 WL 520972, at *10 (Tenn. Ct. App.
Feb.12, 2010)). Here, however, DCS failed to make an effort to assist Mother with obtaining even a suitable
physical home.
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can be safely returned to the custody of the parent, not whether the child can safely remain
in foster care with weekly visits with the parent. Id. A parent's continued inability to provide
fundamental care to a child, even if not willful, whether caused by a mental illness, mental
impairment, or some other cause, constitutes a condition which prevents the safe return of
the child to the parent's care. In re T.S., No. M1999-01286-COA-R3-CV, 2000 WL 964775,
at *7 (Tenn. Ct. App. July 13, 2000). Where efforts to provide help to improve parenting
abilities have been offered over a long period of time and have proved ineffective, “the
conclusion that there is little likelihood of such improvement as would allow the safe return
of the child to the parent in the near future is justified.” Id.
As we pointed out earlier, however, “[t]he success of a parent's remedial efforts
generally depends on the Department's assistance and support.” In re Giorgianna H., 205
S.W.3d at 518 (citing In re C.M.M.,2004 WL 438326, at *7). Therefore, in order to establish
this ground for termination, “the Department must not only establish each of the elements in
Tenn. Code Ann. § 36–1–113(g)(3)(A), it must also establish by clear and convincing
evidence that it made reasonable efforts to reunite the family and that these efforts were to
no avail.” Id. (citing In re C.M.M., 2004 WL 438326, at *7 n. 27, *8).
We have already determined that DCS did not make reasonable efforts to reunite
Mother and Josephine. Therefore, we reverse the trial court’s finding that the ground of
persistent conditions was proven by clear and convincing evidence.
V. C ONCLUSION
For the aforementioned reasons, the decision of thejuvenile court is hereby reversed
and remanded for such other proceedings as may be necessary. Costs of this appeal are taxed
to the appellee, the Tennessee Department of Children’s Services, for which execution may
issue if necessary.
_________________________________
ALAN E. HIGHERS, P.J., W.S.
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