Services v. C.S.M. And L.M.M.

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
February 13, 2002 Session
STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S
SERVICES v. C.S.M. and L.M.M.
IN RE: C.M.M.
Appeal from the Juvenile Court for Union County
No. 2615 Darryl W. Edmondson, Judge
FILED MARCH 13, 2002
No. E-2000-02806-COA-R3-JV
In this appeal, C.S.M (“Mother”) and L.M.M. (“Father”) challenge the termination of their parental
rights, claiming there was insufficient proof to establish grounds for termination or that it was in the
best interest of their child to terminate the parent-child relationship. We affirm the decision of the
Juvenile Court terminating the parental rights of Mother and Father.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of
the Juvenile Court Affirmed; Case Remanded.
D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HOUSTON M. GODDARD, P.J.,
and HERSCHEL P. FRANKS, J., joined.
Gail F. Wortley, Knoxville, Tennessee, for the Appellants C.S.M. and L.M.M.
Paul G. Summers, Attorney General and Reporter, and Elizabeth C. Driver, Assistant Attorney
General, Nashville, Tennessee, for the Appellee State of Tennessee, Department of Children’s
Services.
OPINION
Background
This appeal is from an Order of the Juvenile Court for Union County terminating
Mother’s and Father’s parental rights to their son, C.M.M., now 8 years old. As in most appeals
involving termination of parental rights, both the procedural background and the facts are critical.
We will, therefore, discuss both in some detail.
This case began in November of 1997, when the child was four years old. A petition
for temporary custody was filed by the child’s grandmother, alleging the child had spent most of his
life with his grandparents. It was further alleged that while Mother and Father (collectively referred
to as “Parents”) did visit their son on weekends, on their last visit before the filing of the petition
they missed a doctor appointment and the child was returned to his grandparents with scabies and
bruises. In February of 1998, the Juvenile Court allowed the grandparents to retain physical custody,
but placed legal custody with the Department of Children’s Services (“DCS”). Due to allegations
of sexual abuse which were being investigated, the Juvenile Court ordered Parents to have no contact
with the child pending further orders of the court. That same month, a Permanency Plan was
developed with the goal of helping Parents become able to care properly for their son. Parents
acknowledged in writing the terms of the Plan and that it had been explained to them. The Juvenile
Court modified its previous order in April 1998 and permitted Parents to have supervised visits with
their son.
The Juvenile Court issued a Temporary Bench Order in December 1998, placing full
custody of the child with DCS after concluding that probable cause existed to believe the child was
dependent and neglected, and due to the emergency nature of the situation, such action was in the
child’s best interest. A revised Permanency Plan (“Plan”) was developed in January of 1999. The
goal of the Plan was to assist Parents with obtaining a suitable home for their son and to develop the
skills they needed to care properly for their child. A report was prepared by a clinical psychologist
in June 1999. The summary from this report is as follows:
Summary and recommendations: [C.M.M.], a six year old
white male in State custody, his parents and grandparents were
evaluated in preparation for a custody determination. [C.M.M.]’s
father appears unable to parent him without supervision and it was
felt that he might expose [C.M.M.] to his uncle in violation of a Court
Order. Only supervised visitation is recommended at present.
[C.M.M.]’s mother appears able to parent well enough to take care of
[C.M.M.], but she has no acceptable home for [him] and there is a
concern that she would allow her husband to expose [C.M.M.] to the
uncle, so again, for the present only supervised visits are
recommended. If concerns about exposure to the uncle are resolved
and it is clear that the mother can assert her authority and not be
-2-
overruled by her husband’s possibly defective judgment, more
extensive, unsupervised visits could be allowed.
[C.M.M.]’s grandmother appears able to care for him and
motivated to do so. While her intelligence is limited and the home is
marginal in terms of resources and cleanliness, she is family and is
interested in having [C.M.M.] and devoting her life to caring for him.
I think she could make a permanent commitment to doing this
assuming that [C.M.M.] does not later become physically
unmanageable, and this is an important issue in placement. Were a
permanent foster home or adoptive home available which could
provide consistent behavioral programming to manage and improve
[C.M.M.]’s behavior and a rich educational environment to maximize
his intellectual gains, this might be the best course. Given the
realistic possibility that [C.M.M.] will be difficult to place
permanently in an ideal foster home, placement with grandmother
might be best if in-home counseling to help with behavior
management could be provided and help with education and
socialization could be arranged.
An Answer and Report of the Guardian ad Litem was filed with the Court. The
Guardian ad Litem stated in this report that Parents had failed to comply with the necessary
requirements set forth previously by the Court and a petition to terminate parental rights filed by
DCS would be forthcoming. The guardian ad litem also maintained visitation should be terminated
because Father had allowed C.M.M. to smoke a cigarette and because Parents had failed to protect
him from an uncle who allegedly had sexually abused him.
On the same day the Guardian ad Litem’s report was filed, DCS filed a Petition to
Terminate Parental Rights. In the Petition, DCS alleged that:
1. Parents had abandoned C.M.M. by willfully failing to support
or make reasonable payments toward the support of C.M.M. for four
consecutive months preceding the filing of the petition;
2. C.M.M. was found to be dependent and neglected and was
placed into custody of DCS; DCS had made reasonable efforts to
prevent removal of C.M.M. but these efforts had failed; DCS had
made reasonable efforts to assist Parents in establishing a suitable
home for C.M.M., but Parents had not made a reasonable effort to
accomplish this objective. DCS further claimed Parents demonstrated
such a lack of concern that it appeared unlikely they would be able to
provide a suitable home for C.M.M.;
-3-
3. C.M.M. had been removed by order of the court for a period
of at least six months, the conditions which led to his removal still
persisted which would subject C.M.M. to further abuse and neglect
and prevent his safe return to Parents; there was little likelihood that
the conditions leading to the removal of C.M.M. from the home
would be remedied and these conditions had persisted for a period of
six months; and continuing the parent-child relationship would
greatly diminish the child’s chances of early integration into a stable
and permanent home;
4. Parents were incompetent to adequately provide care and
supervision of C.M.M. because their mental condition was so
impaired that they would be unable to assume the care and
responsibility for their child in the near future;
5. Parents failed to comply with the terms of the Plan in a
substantial manner and to remedy the conditions leading to C.M.M.’s
removal; and
6. Termination of the parent-child relationship was in the best
interest of the child.
The Petition was amended later to allege that Father had committed severe child abuse by touching
C.M.M.’s penis and Mother had committed neglect by her knowing failure to protect C.M.M. from
this conduct.
Parents stated in their Answer that their monthly income was derived solely from
Social Security Disability benefits and totaled $520.00. Parents stated they did not pay any child
support because they were never ordered nor asked to do so. The remaining pertinent allegations
contained within the Petition were denied by Parents.
A trial was conducted on October 6, 2000. The first witness was Beth Overbay
(“Overbay”), who works for Cherokee Health Systems. Overbay taught three parenting classes of
approximately two hours each which Parents attended. Based on this limited contact, Overbay
opined that Parents could be good parents and should be given an opportunity to try. Overbay did
not review any other information pertaining to Parents, although she did speak with a therapist.
DCS then sought to introduce evidence pertaining to the alleged sexual abuse through
Sheilagh Barnett (“Barnett”), who works for DCS. Parents objected to the admissibility of this
evidence as well as evidence concerning Parents’ background based on lack of trustworthiness and
hearsay. The Juvenile Court admitted this evidence over the objection of Parents. The Juvenile
Court stated, among other things, that it would have to hear the evidence before it could rule on
-4-
whether the evidence was trustworthy.1 Barnett testified she interviewed C.M.M., and he indicated
that both Parents had licked his penis and that his uncle had bitten it. When Barnett interviewed
Parents about these allegations, they told different stories but denied any abuse. Barnett further
testified that after the allegations of abuse surfaced, she ran a background check on Parents. She
discovered records indicating Father had been involved both as a perpetrator (with Father’s niece)
and a victim (by Father’s mother) in sex abuse cases, although no criminal charges had been filed
in any of these cases.
The next witness was a DCS caseworker, Melissa Bush (“Bush”). Bush had worked
with Parents and C.M.M. for a year and a half. Bush was present when Parents exercised supervised
visitation with C.M.M. During these visits, C.M.M. was hard to control and Parents “couldn’t
handle him at times.” Bush testified C.M.M. would want to see Father’s tattoos. “He’d talk about
getting tattoos and about smoking, he would talk about how his dad would let him smoke and dip.
He said that on several [occasions].” During the time Bush knew Parents, she was aware of five
different locations where they lived. Parents had trouble maintaining a stable home because they
could not afford one. They were evicted from at least one residence. Bush acknowledged Parents
loved C.M.M. and were trying to be good parents. According to Bush, the Plan required Parents to
maintain stable housing for at least six months, and they failed to do this. Their current residence
could be acceptable if some minor changes were made. Bush noted that at one point, Parents were
living with the uncle who allegedly abused C.M.M. Neither Parent has been employed since Bush
became involved with the family. Their income consists of a disability check and food stamps.
While Parents did attend three parenting classes totaling six hours, it was standard for most parents
to attend sixty hours worth of such classes. Bush testified C.M.M. has improved “tremendously”
since visitation with Parents stopped. While he still has difficulty with school, he is now using a
fork and a knife and will sit down instead of “running around the whole time while he is eating.”
C.M.M. can now tie his shoes and say his ABC’s. According to Bush, Parents made no real progress
until the Petition to terminate their parental rights was filed.
Ms. Lola Kelly (“Kelly”), a residential case manager with DCS also testified. Kelly
worked with Parents and C.M.M. from January through July of 1999. When Kelly was present
during supervised visits, C.M.M. was out of control. Father’s tattoo “meant the world” to C.M.M.
Kelly did not believe Parents were able to control C.M.M., although she believed they do love him.
Roy Kersey, Ph.D. (“Kersey”), a clinical psychologist, testified he prepared
psychological evaluations on Parents. Kersey testified Father was mentally retarded. Kersey had
concerns about Father’s ability to care for C.M.M. According to Kersey, Father’s abilities were such
that he could not plan and exercise proper judgment in order to care for C.M.M. Father told Kersey
he used to drink a half gallon of vodka a day, but he was now abstinent. Kersey expressed “serious
1
On appeal, Parents do not challenge the Juvenile Cou rt’s admission of this evidence. Rather, they argue that
DCS failed to prove by clear and convincing evidence that Parents “exposed to and failed to protect [C.M.M.] from
severe child abuse as defined in TCA Section 37-1-102(21)(c).” We will, therefore, consider this evidence to have been
properly admitted.
-5-
doubts” about Father’s ability to care even for a child with no mental or learning difficulties. His
concern was even greater for C.M.M. who had been diagnosed with opposition defiant disorder. The
conclusions set forth in Kersey’s evaluation of Father are as follows:
1. Results of the present evaluation indicate that [Father] would
not be a fit custodial parent for his son, [C.M.M.] His intellectual
limitations leave him capable of little more than self-care. Moreover,
[C.M.M.]’s special needs require a parent able to be extremely
consistent and watchful in following specific procedures designed to
improve [C.M.M.]’s socialization. [Father] is clearly incapable of
this.
2. Given [Father]’s inability to follow specific instructions to
keep [C.M.M.] away from the danger of possible sexual abuse, he
should not be allowed to visit [C.M.M.] unsupervised. Family
members are probably not [the] appropriate supervisors of visits
because of their low functional level and inability to follow DCS’s
specific rules, either. If [C.M.M.] is allowed to visit his father,
reliable persons outside the family should supervise closely.
Kersey testified Mother was functioning just above the mentally deficient range. He
likewise expressed concern about her ability to raise a child, especially one with opposition defiant
disorder. He also was concerned about Father’s ability to control and dominate Mother. The
conclusions set forth in Kersey’s evaluation of Mother are as follows:
1. [Mother] is not a fit custodial parent for [C.M.M.]. Her
abilities and her family situation cannot be expected to improve,
either, so a permanent placement outside her home should be a focus
for [C.M.M.].
2. [Mother] is easily led by her husband and has trouble grasping
complex situations and exercising good judgment in parenting
decisions about [C.M.M.], so any visitation should be supervised.
Mother testified she participated in the Permanency Plan. Mother admitted moving
around and living in places that were not suitable for C.M.M., or homes which she was told were not
suitable. Mother stated C.M.M. was not a difficult child to manage. For the most part, Mother
claimed she could raise C.M.M., and they could take care of their son.
The final witness was Melissa Bush (“Bush”), who read into the record the Child
Protective Services intake form. The initial call was placed by C.M.M.’s grandmother, who stated
that on two occasions, C.M.M. was bruised when he returned from visits with his parents. The
grandmother also claimed Father would be abusive to C.M.M. when Father was drunk. She also
-6-
related a story where C.M.M. was discovered in the bathroom allowing a dog to lick his private
parts, and when he was confronted about the situation, C.M.M. reportedly acted like nothing was
wrong because his Father and uncle did that to him too. During the trial, the grandmother could not
“remember” making any of these statements.
After taking the case under advisement, the Juvenile Court issued an Order
terminating the parental rights of both Mother and Father. We will paraphrase the Juvenile Court’s
various findings:
1. Termination of the parents rights was in the best interest of
C.M.M.;
2. Parents had abandoned C.M.M. by willfully failing to support
or make reasonable payments toward the support of C.M.M. for four
consecutive months preceding the filing of the petition;
3. C.M.M. was found to be dependent and neglected, was placed
into custody of DCS; that DCS had made reasonable efforts to
prevent removal of C.M.M., but these efforts had failed; that DCS
had made reasonable efforts to assist Parents in establishing a suitable
home for their child, but Parents had not made a reasonable effort to
accomplish this objective; and Parents demonstrated such a lack of
concern that it appeared unlikely they would be able to provide a
suitable home for C.M.M. at an early date;
4. C.M.M. had been removed by order of the court for a period
of at least six months; that the conditions which led to the removal
still persisted which would subject C.M.M. to further abuse and
neglect and prevent his safe return to Parents; there was little
likelihood that the conditions leading to the removal of C.M.M. from
the home would be remedied and these conditions had persisted for
a period of six months; and continuing the parent-child relationship
would greatly diminish C.M.M.’s chances of early integration into a
stable and permanent home;
5. Father was mentally retarded pursuant to testing and Mother
was in the border-line range of intelligence as determined by testing;
that Parents could not adequately provide for the further care and
supervision of C.M.M. because of their mental condition; that
Parents’ condition was likely to remain and it was unlikely that they
would be able to assume the care and responsibility for C.M.M. in the
near future;
-7-
6. Despite frequent explanations of the statement of
responsibilities set out in the Plan, Parents failed to comply with the
terms of the Plan in a substantial manner and to remedy the
conditions leading to C.M.M.’s removal; and
7. Parents allowed C.M.M. to be exposed to and failed to
protect him from severe child abuse as defined in Tenn. Code Ann.
§ 37-1-102(21)(C).
Discussion
A review of findings of fact by a trial court is de novo upon the record of the trial
court, accompanied by a presumption of correctness, unless the preponderance of the evidence is
otherwise. Tenn. Rule App. P. 13(d); Brooks v. Brooks, 992 S.W.2d 403, 404 (Tenn. 1999). Review
of questions of law is de novo, without a presumption of correctness. See Nelson v. Wal-Mart Stores,
Inc., 8 S.W.3d 625, 628 (Tenn. 1999).
We first address the issues raised by Parents regarding the Juvenile Court’s
determination that there was clear and convincing evidence of grounds to terminate their parental
rights. It is well established that "parents have a fundamental right to the care, custody, and control
of their children." In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988) (citing Stanley v.
Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L.Ed.2d 551 (1972)). "However, this right is not absolute
and parental rights may be terminated if there is clear and convincing evidence justifying such
termination under the applicable statute." Id. (citing Santosky v. Kramer, 455 U.S. 745, 102 S. Ct.
1388, 71 L.Ed.2d 599 (1982)).
Termination of parental or guardianship rights must be based upon a finding by the
trial court that: (1) the grounds for termination of parental or guardianship rights have been
established by clear and convincing evidence; and (2) termination of the parent’s or guardian’s rights
is in the best interests of the child. Tenn. Code Ann. § 36-1-113(c). Before a parent’s rights can be
terminated, it must be shown that the parent is unfit or substantial harm to the child will result if
parental rights are not terminated. In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999); In re M.W.A.,
Jr., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998). Before the trial court may inquire as to whether
termination of parental rights is in the best interests of the child, it must first determine that the
grounds for termination have been established by clear and convincing evidence. Tenn. Code Ann.
§ 36-1-113(c). A court’s findings by clear and convincing evidence that one or more of the statutory
grounds for termination have been met and that it is in the best interest of the child to do so satisfy
the requirement for a showing that the parent is unfit or that substantial harm to the child will result
if parental rights are not terminated. This Court discussed the “clear and convincing evidence”
standard in O’Daniel v. Messier, 905 S.W.2d 182 (Tenn. Ct. App. 1995), as follows:
The “clear and convincing evidence” standard defies precise
definition. Majors v. Smith, 776 S.W.2d 538, 540 (Tenn. Ct. App.
-8-
1989). While it is more exacting than the preponderance of the
evidence standard, Santosky v. Kramer, 455 U.S. at 766, 102 S. Ct.
at 1401; Rentenbach Eng’g Co. v. General Realty Ltd., 707 S.W.2d
524, 527 (Tenn. Ct. App. 1985), it does not require such certainty as
the beyond a reasonable doubt standard. Brandon v. Wright, 838
S.W.2d 532, 536 (Tenn. Ct. App. 1992); State v. Groves, 735 S.W.2d
843, 846 (Tenn. Crim. App. 1987).
Clear and convincing evidence eliminates any serious or
substantial doubt concerning the correctness of the conclusions to be
drawn from the evidence. See Hodges v. S. C. Toof & Co., 833
S.W.2d 896, 901 n. 3 (Tenn. 1992). It should produce in the fact-
finder’s mind a firm belief or conviction with regard to the truth of
the allegations sought to be established. In re Estate of Armstrong,
859 S.W.2d 323, 328 (Tenn. Ct. App. 1993); Brandon v. Wright, 838
S.W.2d at 536; Wiltcher v. Bradley, 708 S.W.2d 407, 411 (Tenn. Ct.
App. 1985).
O’Daniel v. Messier, 905 S.W.2d at 188.
Initiation of termination of parental rights may be based upon a number of statutory
grounds set forth in Tenn. Code Ann. § 36-1-113(g). This Court has recognized that the existence
of any one of these statutory bases will support a termination of parental rights. See In re C.W.W.,
37 S.W.3d 467, 473 (Tenn. Ct. App. 2000). In the present case, therefore, we must affirm the
Juvenile Court's judgment terminating Mother’s and Father's parental rights if the record contains
clear and convincing evidence to support even one of the bases found by the Juvenile Court. Id. at
474.
Two of the bases relied upon by the Juvenile Court to terminate the Parents’ parental
rights are Tenn. Code Ann. § 36-1-113(g)(2) and (3), which provide that termination of parental
rights may occur if:
(2) There has been substantial noncompliance by the parent or
guardian with the statement of responsibilities in a
permanency plan or a plan of care pursuant to the provisions
of title 37, chapter 2, part 4;
(3)(A) The child has been removed from the home of the parent or
guardian by order of a court for a period of six (6) months
and:
(i) The conditions which led to the child’s removal or
other conditions which in all reasonable probability
-9-
would cause the child to be subjected to further abuse
or neglect and which, therefore, prevent the child’s
safe return to the care of the parent(s) or guardian(s),
still persist;
(ii) There is little likelihood that these conditions will be
remedied at an early date so that the child can be
safely returned to the parent(s) or guardian(s) in the
near future; and
(iii) The continuation of the parent or guardian and child
relationship greatly diminishes the child’s chances of
early integration into a safe, stable and permanent
home.
The Juvenile Court found there was clear and convincing evidence that these statutory
grounds (and others) for termination of Parents’ parental rights had been met. In making this
determination, the Juvenile Court had access to reports from the DCS representatives and the reports
of the Guardian ad litem. The Juvenile Court heard the testimony of the DCS representatives, and
the psychologist who evaluated Parents and C.M.M., as well as the other witnesses. “Unlike this
Court, the [Juvenile Court] observed the manner and demeanor of the witnesses and was in the best
position to evaluate their credibility.” Union Planters Nat’l Bank v. Island Mgmt. Auth., Inc., 43
S.W.3d 498, 502 (Tenn. Ct. App. 2000). The trial court’s determinations regarding credibility are
accorded considerable deference by this Court. Id.; Davis v. Liberty Mutual Ins. Co., 38 S.W.3d 560,
563 (Tenn. 2001). “‘[A]ppellate courts will not re-evaluate a trial judge’s assessment of witness
credibility absent clear and convincing evidence to the contrary.’” Wells v. Tennessee Bd. of Regents,
9 S.W.3d 779, 783 (Tenn. 1999).
Based on our review of the entire record, including the facts detailed at length above,
we do not believe the Juvenile Court committed any reversible error in its conclusion that clear and
convincing evidence existed to terminate Parents’ parental rights pursuant to Tenn. Code Ann. §§
36-1-113(g)(2) and (g)(3). Parents have not been able to establish and maintain a suitable home for
C.M.M. They attended a total of six hours of parenting classes. While no one questions that Parents
love their son, the evidence does not preponderate against the Juvenile Court’s conclusions that
Parents are unable to care properly for C.M.M., that the conditions leading to his removal persisted
and were unlikely to be changed, etc. Likewise, the evidence does not preponderate against the
Juvenile Court’s conclusion that Parents were not in substantial compliance with the terms of the
Plan. Because we affirm the termination of Mother’s and Father’s parental rights pursuant to Tenn.
Code Ann. §§ 36-1-113(g)(2) and (g)(3)(A)(i) through (iii), we pretermit whether any of the other
statutory grounds for termination as found by the Juvenile Court were met.
Having affirmed that two of the statutory grounds for termination were proven by
clear and convincing evidence, we next address Parents’ claim that it was not proven by clear and
-10-
convincing evidence that the termination of their parental rights was in the best interest of C.M.M.
Tenn. Code Ann. § 36-1-113(i) describes the standard for determining whether termination is in the
best interests of the child in such cases:
(i) In determining whether termination of parental or
guardianship rights is in the best interest of the child pursuant
to this part, the court shall consider, but is not limited to, the
following:
(1) Whether the parent or guardian has made such an
adjustment of circumstance, conduct, or conditions as
to make it safe and in the child’s best interest to be in
the home of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a
lasting adjustment after reasonable efforts by available
social services agencies for such duration of time that
lasting adjustment does not reasonably appear
possible;
(3) Whether the parent or guardian has maintained regular
visitation or other contact with the child;
(4) Whether a meaningful relationship has otherwise been
established between the parent or guardian and the
child;
(5) The effect a change of caretakers and physical
environment is likely to have on the child’s emotional,
psychological and medical condition;
(6) Whether the parent or guardian, or other person
residing with the parent or guardian, has shown
brutality, physical, sexual, emotional or psychological
abuse, or neglect toward the child, or another child or
adult in the family or household;
(7) Whether the physical environment of the parent’s or
guardian’s home is healthy and safe, whether there is
criminal activity in the home, or whether there is such
use of alcohol or controlled substances as may render
the parent or guardian consistently unable to care for
the child in a safe and stable manner;
-11-
(8) Whether the parent’s or guardian’s mental and/or
emotional status would be detrimental to the child or
prevent the parent or guardian from effectively
providing safe and stable care and supervision for the
child; or
(9) Whether the parent or guardian has paid child support
consistent with the child support guidelines
promulgated by the department pursuant to § 36-5-
101.
Tenn. Code Ann. § 36-1-113(i). After considering all relevant factors and the entire record,
including the testimony of all the witnesses, we do not believe the Juvenile Court committed
reversible error when it concluded that clear and convincing evidence existed that it was in the best
interest of C.M.M. to terminate the parental rights of Mother and Father.
Conclusion
The judgment of the Juvenile Court is affirmed, and this cause is remanded to the
Juvenile Court for such further proceedings as may be required, if any, consistent with this Opinion,
and for collection of the costs below. The costs on appeal are assessed against the Appellants,
C.S.M. and L.M.M. and their surety.
___________________________________
D. MICHAEL SWINEY, JUDGE
-12-