State of Tennessee, Department of Children's Services v. Brennon Harville and Jimmy Harville, Sr.

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs, September 8, 2008
Reassigned 2008
STATE OF TENNESSEE, DEPARTMENT OF CHILDREN’S SERVICES v.
BRENNON HARVILLE and JIMMY HARVILLE, SR.
Direct Appeal from the Juvenile Court for Hamblen County
No. 15360 Hon. Mindy Norton Seals, Judge
Filed April 9, 2009
No. E2008-00475-COA-R3-PT
The State filed this action to terminate the parental rights of both parents to their three minor
children. Upon hearing the evidence, the Trial Judge terminated the parental rights of both parents
on several grounds. On appeal, we affirm the Judgment of the Trial Court.
Tenn. R. App. P.3 Appeal as of Right; Judgment of the Juvenile Court Affirmed.
HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the Court, in which CHARLES D. SUSANO ,
JR., J., and D. MICHAEL SWINEY , J., joined.
David S. Byrd, Morristown, Tennessee, for appellant, Jimmy Harville, Sr.
Robert E. Cooper, Jr., Attorney General and Reporter, and Elizabeth C. Driver, Senior Counsel,
Nashville, Tennessee, for appellee, Tennessee Department of Children’s Services.
OPINION
This appeal arises from the termination of parental rights of appellants Brennon Lei
Harville (Mother) and Jimmy Carl Lynn Harville, a.k.a. Jimmy Lynn Harville, (Father) on February
6, 2008 by Hamblen County Juvenile Judge. The State filed separate Petitions as to the parents’
three children. The children at issue are J.L.H., date of birth 01/24/06, A.D.H. , date of birth
11/20/03, and A.L.H., date of birth 08/30/01.
The petitions averred that the Department of Children’s Services was the custodian
of the children who were in foster care at the time of the filing of the petitions to terminate. At the
time of the filing of the petition, Mother was incarcerated in the Hamblen County Jail and Father was
living in Morristown, Tennessee.
The State alleged numerous statutory grounds for terminating the parents’ parental
rights. Following trial, the Trial Court’s finding of fact are summarized as follows:
1. The children were removed from the care and custody of the parents on or
about February 8, 2006 for the safety of the children. JLH was born on
January 24, 2006 and he and Mother tested positive of cocaine on that date.
Father had also tested positive for cocaine in January 2006 although he later
tested negative. The first permanency plan for the children was ratified on
March 8, 2006.
2. A CASA report from May 10, 2006 reported that Father was angry and
insulting to the CASA representative when he learned that CASA was not
going to recommend the children be returned to the parents on a trial
placement. Mother had not received a [alcohol and drug] assessment nor a
mental health assessment, both of which were included on the permanency
plan. Mother was arrested on April, 28, 2006 for DUI, driving with an
expired license, violation of parole, violation of registration law and violation
of financial responsibility law. Both parents are attending parenting classes
which should conclude during May 2006.
3. Minutes from the Foster Care Review Board on December 13, 2006 showed
that the Board recommended that the parents’ rights be terminated, that
Father have drug screening before visits with the children, that the children
be removed from Linda Wilson’s custody as Bobby Joe Campbell is now
living with Ms. Wilson and the children. Campbell has been diagnosed as bi-
polar, is addicted to drugs and has anger management issues. Based on this
report, the court ordered that the circumstances regarding Campbell be
investigated, if Campbell is living with Wilson, he must be drug tested and
if the drug screen is positive, Wilson must cause him to leave the home or the
children will be removed from the home. Further Father is to be drug tested
after each visit with children.
4. On July 24, 2007 the court entered the adjudicatory order from the May 10,
2006 hearing, finding the children dependent and neglected at the time of
their removal and that they were subjected to a substantial threat of harm if
not placed in state custody. 1
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Apparently, DCS had not provided a judgment to the court following the hearing and the
court did not become aware that a written order had not been entered for over one year.
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5. A review of the parents’ progress on the permanency plan was held on March
21, 2007. Father tested positive for cocaine and opiates on that date. The
court found that Mother was in rehabilitation. Father told the court that his
drug test would be positive for opiates and he acted very inappropriately
toward the court. The court held that Father must coordinate all visits with
DCS and must have a clean drug test before each visit.
6. The court reviewed the findings of the hearings on June 27 and July 11, 2007
on Linda Wilson’s petition for custody. Mother was in jail at that time, after
being arrested on July 5, 2007 for DUI, theft and public intoxication. Father
had been bound over to the Hamblen County Grand Jury for possession for
sale of Schedule II and III drugs, possession of drug paraphernalia,
possession of legend drug, and DUI on July 5, 2007. Father was not
supporting the children nor was he providing supplies, money or meals as
promised to the children.
7. Father did not visit his children between March 2007 and June 20, 2007. He
visited the children twice, once on June 20, 2007 after a court appearance and
on August 9, 2007. Since August he had visited on a more consistent basis
except he did not see the children in October 2007, as he was incarcerated for
a good part of that month.
8. The first permanency plan was ratified by the court - the parents were to
schedule mental health assessments, sign releases, attend parenting classes
and follow recommendations. Mother was to submit to random drug screens,
and arrange for an alcohol and drug assessments within two weeks of the plan
being made. The plans of February 6, 2007 and August 6, 2007 added that
Father would have random drug screens and complete an alcohol and drug
assessment. The parties agreed to the provisions in the plans
The Juvenile Court found the following findings of fact specific to Father.
9. Father’s first alcohol and drug assessment recommended that he complete a
thirty-day in-patient treatment program but, as he did not believe he needed
the treatment, he did not follow through. He completed a second assessment
in November 2007 and he was to complete a twelve week out-patient
program. He attended one class. Father was to attend parenting class and
although he stated that he had completed the classes, he had not done so.
Father tested positive of cocaine and opiates on May 10, 2006 and March 21,
2007, he refused a drug test on June 13, 2006. Despite this history, Father
testified that he never had a problem with drugs or alcohol except for when
he became hooked on opiates following knee surgery. According to Father
he had not used cocaine when he tested positive two times at court and he is
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not in a drug treatment program but is being “restored” through Christ.
Father does not believe he has an anger management problem.
10. Heidi Huenergarde, the DCS case manager, testified that Father attended all
permanency plan meetings, was given the Criteria and Procedures for
Termination or Parental Rights, had his attorney with him, asked questions
and told her that he understood the Criteria. Ms. Huenergarde does not
believe Father completed the responsibilities set forth in the plan because he
has not provided documentation that he had the mental assessment or that he
completed parenting classes. Further, although he had the alcohol and drug
assessment, he did not follow the recommendations as he had agreed to do.
Father, who had no documentation, testified that he did have the mental
assessment and there were no recommendations.
11. Father was indicted on September 24, 2007 for the crimes listed in paragraph
six. The trial was set for March, 2008.
12. On November 30, 2007 Father pled guilty in Jefferson County Criminal
Court to aggravated burglary and received a six year sentence, to assault and
received a sentence of eleven months and twenty-nine days, and to possession
of cocaine with intent to sell or deliver and received a sentence of eight years.
He was arrested on a Violation of Probation Affidavit (Exhibit 25) on January
24, 2008 while he was in the Hamblen County Juvenile Court for the
termination trial. The affidavit states in part that father had violated his
probation by not reporting to the Jefferson County Jail to begin service of his
sentence on December 17, 2007. Father testified that the affidavit was a
mistake because he was given the option to begin New Hope Restoration on
December 17, 2007 in lieu of jail, which he accepted. Exhibit 23 states: “May
obtain jail credit for successful completion of inpatient treatment at New
Hope.” Father’s sentence was reduced to twelve months incarceration with
the balance of the sentence on supervised probation of thirteen years. He was
also required to have a drug and alcohol assessment and to comply with the
recommendations. At the termination trial Father testified that he was not
guilty of these crimes and he only pled guilty “just to get it over”.
13. Father’s case worker, Jerry Graham, testified at the termination trial and
established the following: Father began the New Hope Restoration Program
on December 17, 2007. The program is an addiction recovery program that
is Christ based. Father is also working on anger management. Father’s first
two weeks in the program were “touch and go” as he did not want to submit
to authority. He had not violated any program rules during the week and a
half before the termination trial and Mr. Graham thought Father was willing
to disclose the issues he needed to work on to the program. Father has been
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negative to three out of four random drug screens while in the New Hope
Program. He gets counseling once a week regarding his drug addiction, he
attends Bible classes and G.E.D. classes and works in the New Hope thrift
shop. Father has completed six weeks of the six month program and Mr.
Graham could not predict whether Father would complete the program as
about forty percent of the participants do not complete the entire course.
14. Father also testified at the termination trial regarding the New Hope
Restoration program. Contrary to Mr. Graham’s testimony, Father insisted
that the program is not a drug rehabilitation program. Father blamed his
problems on the actions of DCS and he believes he “was driven to the
criminal charges” by DCS’s attorney, Mr. Pettigrew’s, actions at the trial on
his grandmother’s custody petition. He stated his belief that DCS’s actions
have been as harmful to the children as his serving jail time.
15. Father was incarcerated in December 2007 for failure to pay child support for
a child other than the three children at issue here.
The Juvenile Court then addressed its findings of fact pertaining to Mother.
16. Mother was twenty-five years old at the time of the termination trial and was
at the Greatstarts treatment facility in Knoxville. She had entered that
program on November 27, 2007 and she had been incarcerated on and off for
ten months prior to that date. On December 28, 2007, Mother gave birth to
a son, Justice, who stayed with Mother at Greatstarts. Mother lives with
Justice in a Greatstarts apartment and although there is staff present at the
apartment complex, Mother is not supervised in her apartment. Her case
worker testified that she is doing well in the program; she has always tested
negative to drug screening; she is attentive to Justice; obeys the rules; and is
active in therapy sessions. As part of the program Mother gets drug and
alcohol therapy two to three times a week, participates in a twelve step
program and takes classes in parenting, yoga, coping skills and acupuncture.
Her program will last six to nine months and she could stay in the Greatstarts’
apartment for up to two years if necessary. The three children in custody with
DCS could live with Mother and Justice at Greatstarts. Mother testified that
her participation in Greatstarts is voluntary and that she would not be subject
to incarceration if she leaves the program before finishing it. The order to
transport Mother from the Hamblen County jail to Greatstarts is Exhibit 24
A.
17. Ms Huenergarde provided the following history regarding Mother. Mother
executed the permanency plan on February 24, 2006 wherein she agreed to
have an alcohol and drug assessment on March 21, 2006. She did not keep
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that appointment and when another appointment was made for April 26,
2006, she likewise did not show up. She was arrested on April 28, 2006 for
a violation of probation. She completed the drug and alcohol assessment on
June 16, 2006. She was incarcerated from August 17, 2006 to November 20,
2006 and she completed a twenty-one day in-patient program for drug
addiction at Center Pointe during this incarceration. She was arrested again
during March 2007 and was transported to the Buffalo Valley treatment
facility for another in-patient treatment program. She absconded from this
facility and failed to report back to the Hamblen County Sheriff’s Department
as she had been ordered to do. She was “on the run” from March 21, 2007 to
July 5, 2007 and during that period she did not contact DCS. According to
Ms. Huenergarde, Mother blamed DCS for her using cocaine in March 2007
because DCS had placed her children with her parents, the Aguirres, and
Mother also lived there and DCS gave Mother no assistance.
18. Exhibits 24C - 24M provide a history of Mother’s criminal history:
March 26, 2007 violation of probation granted on February 1, 2005 for theft,
public intoxication, disorderly conduct and D.U.I; warrant for
arrest ordered
March 12, 2007 violation of probation; sentence of 11 months and 29 days;
100% to be served and consecutive to 550B0T
August 16, 2006 violation of probation; sentence of 11 months and 29 days;
100% to be served
June 7, 2006 revocation of Title 40 deferment
June 6, 2006 violation of probation; sentence of 11 months and 29 days;
100% to be served on house arrest
December 4, 2004 plea of guilty to public intoxication, and disorderly conduct;
Title 40 granted; placed on probation
19. Mother testified that she had used cocaine since 2001 and that she abused
prescription drugs. When she was arrested in 2005, she was under the
influence of prescription drugs and she committed theft at WalMart. Her
children were with a babysitter at the time. During part of the time her
children were placed with her parents, the Aguirres, she lived there also. She
used drugs with her parents once during that time and she described her
parents as “pill heads”. She stated that she had four drug and alcohol
assessments, had completed an in-patient program at Center Point, completed
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aftercare at New Hope and had completed parenting classes. As part of her
aftercare she was to go to counseling at Cherokee Health Systems but she
only went one time. She relapsed and began to abuse drugs again. She was
then ordered by the court to be admitted to Buffalo Valley but she left there
after two weeks without permission and she was AWOL from March 25,
2007 until she was arrested on July 5, 2007. Mother did not see her three
older children from March 2007 to December 28, 2007. Mother was in labor
during the December 2007 visit with the children at Greatstarts so the visit
only lasted thirty minutes. Ms. Huenergarde, who was present, stated that
Jimmy did not know his mother. Mother would like the three older children
to join her and Justice at Greatstarts.
20. Mother is not employed and she has no income. She depends on Father for
financial support. She did not know she was supposed to pay child support
but she claimed that she bought diapers, clothes and toys for her children
when they were placed with relatives.
21. The children have been placed in three non-relative homes since they have
been in DCS custody. They were with relatives until July 11, 2007; they were
in a foster home in Maryville for a short period, until July 24, 2007; they
were placed in a second foster home until October 5, 2007. Since that time
they have been in a pre-adoptive foster placement and they seem close to their
foster mother. The children are in dance class and participate in school
activities. DCS has placed an in-home service provider in the foster home to
assist the foster parents and children with problems they have experienced.
Some of the problems are that ALH tells lies that are sometimes hateful;
A.D.H. has hurt herself and tried to strangle JLH and an animal. JLH is
developmentally delayed but he is improving.
The Juvenile Court then found several statutory grounds for termination of the
parents’ rights, and that it was in the best interest of the children and decreed termination of the
parental rights as to the three children.
The issues presented for review are:
A. Did the Juvenile Court err when it found that the mother exhibited wanton
disregard for the welfare of the children?
B. Did the Juvenile Court err when it found that persistent conditions existed as
to both the father and the mother?
C. Did the Juvenile Court err when it found that the father and the mother had
abandoned the children by failing to provide a suitable home?
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D. Did the Juvenile Court err when it found substantial noncompliance with the
permanency plan on the part of father?
E. Did the Juvenile Court err when it found that the father had abandoned his
children by failing to visit and/or support them?
This Court reviews the decisions of a trial court sitting without a jury de novo upon
the record. In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). There is a presumption of correctness
as to the trial court's findings of fact, unless the preponderance of evidence is otherwise. Id.; Tenn.
R .App. P. 13(d). The trial court’s conclusions of law are reviewed under a purely de novo standard
with no presumption of correctness. Taylor v. Fezell, 158 S.W.3d 352, 357 (Tenn. 2005). This Court
reviews credibility determinations made by the trial court with great deference, Keaton v. Hancock
County Bd. of Educ., 119 S.W.3d 218, 223 (Tenn. Ct. App. 2003), because the trial court is in the
best position to resolve factual issues that hinge on credibility. Hopper v. Moling, No. W2004-
02410-COA-R3-CV, 2005 WL 2077650 at *7 (Tenn. Ct. App. Aug 26, 2005).
Tennessee Code Annotated Section 36-1-113 governs the termination of parental
rights and provides that the termination of parental rights must be based on a finding by the court
by clear and convincing evidence that the grounds for termination or parental or guardianship rights
have been established and that termination of the parent's rights is in the bests interests of the child.
Tenn. Code Ann. § 36-1-113(c) (2005).
The governing statutes require that one seeking to terminate parental rights must
establish at least one statutory ground for termination. Tenn. Code Ann. § 36-1-113(c)(1)(2005);
M. D. E. ex rel. M. E. G. v. J. J. C., No. E2006-00942-COA-R3-PT, 2007 WL 1958643 at * 3
(Tenn. Ct. App. July 6). Once a court finds that clear and convincing evidence proves the existence
of at least one statutory ground, the inquiry then shifts to the child's best interests as set forth by
Tenn. Code Ann. § 36-1-113(I). If the court concludes that termination is in the child's best interest,
then the entry of a termination order is appropriate. In re B. P. C., at * 6.
Neither Mother nor Father has appealed the Juvenile Court’s finding that termination
of the parents’ rights were in the best interest of the children. Accordingly, that prong of the
determination to terminate the parental rights need not be addressed by this Court. Melton v. Melton,
No. M2001-00128-COA-R3-CV, 2004 WL 63437 at *3 (Tenn. Ct. App. Feb 22, 2004). Also see,
Bing v. Baptist Memorial Hospital-Union City, 937 S.W.2d 922, 924 (Tenn. Ct. App.1996); Bank
of Crockett v. Cullipher, 752 S.W.2d 84, 86 (Tenn. Ct. App.1988).
In this case the Juvenile Court relied on three statutory grounds in terminating
Mother’s parental rights and four grounds in terminating Father’s parental rights.
The Juvenile Court was correct in terminating Mother’s parental rights based on a
finding by clear and convincing evidence that Mother had abandoned the children due to her
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incarceration at the time of the filing of the termination petition on August 23, 2007 and upon a
finding that Mother’s actions constituted wanton disregard for the welfare of the children. Tenn.
Code Ann § 36-1-102 (1)(A)(iv) provides that for purposes of terminating the parental rights of
parents of a child to that child in order to make that child available for adoption, “abandonment”
means that:
(iv) A parent . . . is incarcerated at the time of the institution of an action or
proceeding to declare a child to be an abandoned child, or the parent . . . has been
incarcerated during all or part of the four (4) months immediately preceding the
institution of such action or proceeding, and . . . the parent or guardian has engaged
in conduct prior to incarceration that exhibits a wanton disregard for the welfare of
the child . . . .
It is undisputed that Mother was incarcerated on August 23, 2007 when the
termination petition was filed. The first criteria for abandonment under section 36-1-102 (1)(A)(iv)
was met. See, In Re Audrey S. And Victoria L, 182 S.W.3d 838, 865 (Tenn. Ct. App. 2005). The
Juvenile Court then found the Mother’s behavior prior to incarceration constituted wanton disregard
for the welfare of the children. The Court based that finding on a laundry list of examples of
Mother’s exceptionally poor judgment and bad acts that affected the children starting with the fact
that she used cocaine when pregnant with J.L.H. and that she and J.L.H. tested positive for cocaine
at the time of the child’s birth. The Trial Court also found that Mother’s delay in getting an alcohol
and drug assessment, failure to complete drug rehabilitation until such time as she was incarcerated
and ordered by the Court to attend the program and her failure to complete the requirements of
aftercare showed wanton disregard for the welfare of the children. The fact that Mother used cocaine
and opiates after being release from the drug rehabilitation program and that she blamed DCS for
her relapse were also factors that contributed to the Trial Court’s finding of abandonment based on
wanton disregard. Mother’s criminal history, repeated violation of probation, incarcerations and the
fact that she absconded from a court ordered rehabilitation were also strong indicators to the Trial
Court that Mother had wanton disregard for her children’s welfare prior to the time the termination
petition was filed.
The evidence supports the Trial Court’s fact finding. See, In re Audrey S., 182
S.W.3d at 867-868; See also M.D.E. ex rel. M.E.G. v. J.J.C., No. E2006-00942-COA-R3-PT, 2007
WL 1958643 at * 3 (Tenn. Ct. App. July 6, 2007)perm. to app. denied.
Here DCS proved by clear and convincing evidence that all of these elements that
have been held to show wanton disregard for a child’s welfare and more, including the cocaine she
exposed J.L.H. to in utero, were present. We affirm the Trial Court’s finding that Mother displayed
a wanton disregard for the welfare of her children.
The Juvenile Court also found that Father had failed to remedy the conditions that
were the cause of the removal of the children from his custody and that those conditions still
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persisted and were unlikely to be remedied at an early date. Further the Trial Court found that a
continuation of the father/ child relationship would greatly diminish the chances of the children being
placed in a safe and stable home. Tenn. Code Ann. § 36-1-113(g)(3)(A) provides that a court may
terminate parental rights when:
(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 Juvenile Court held that DCS had proved this ground as to Father by clear and
convincing evidence based upon the following: (1) the children had been in the custody of the State
for more than six months; (2) the children were originally removed from the parents due to the
parents testing positive for cocaine and were found by the Court to be neglected and dependent; (3)
Father had persisted in testing positive for cocaine and had been convicted of possession of cocaine
for sale or delivery in Jefferson County and similar charges were pending against him in Hamblen
County; (4) the conditions of Father’s illegal drug use and his criminal convictions and pending
criminal charges along with the fact that he was arrested on January 24, 2008, still existed and, in
all reasonable probability, would lead to further neglect or abuse of the children; and (5) there is little
chance that those conditions would be remedied at an early date. The Trial Court noted that the
children had been in State custody for twenty-three months and that Father had ample time to
rehabilitate himself so that he could parent his children. The Court held that continuation of the
parental relationship would greatly diminish the chances of the children being placed in a safe, stable
and permanent home and that they were already placed in a pre-adoptive home. Moreover, the Court
found that DCS had made reasonable efforts to assist Father as it had compiled a permanency plan
and discussed it with Father, paid for a drug assessment, paid for the one class Father consented to
attended at the Bendell facility, paid for Father’s drug screens, and was available to schedule and
supervise Father’s visitation with the children. The Court noted that DCS had reiterated to Father
that he must complete parenting classes and obtain a mental health assessment and had given him
the names of providers for these services.
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The evidence presented at trial supports the Trial Court’s determination that the
conditions that led to the removal of the children were not remedied by Father and still persisted at
the time of trial and that all of the statutory factors for this ground for termination of parental rights
were met. We give great deference to the Trial Court’s determination of credibility, and the
conditions that triggered removal of the children remain, and the that the use of illegal drugs
persisted with Father.
We note that at the time of trial it was uncertain how long Father would have to spend
incarcerated. At the end of the second day of trial he was jailed for violation of probation in
connection with his drug possession and assault conviction in Jefferson County, which carried an
eight year sentence. Additionally, he was facing charges for possession of illegal drugs in Hamblen
County, which he intended to plead guilty to. Based upon these facts there was little likelihood
Father could establish a safe, stable and drug-free home for the children to return to at an early date
or even in the near future.
The Juvenile Court did not err when it held that DCS proved all three prongs of Tenn.
Code Ann. § 36-1-113(g)(3) by clear and convincing evidence and when it terminated Father’s
parental rights.
We pretermit discussing the remaining issues, as above indicated, and affirm the
Judgment of the Trial Court and remand, with the cost of the appeal assessed jointly and severally
to Brennon Lei Harville and Jimmy Carl Lynn Harville, a/k/a Jimmy Lynn Harville.
______________________________
HERSCHEL PICKENS FRANKS, P.J.
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IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
STATE OF TENNESSEE, DEPARTMENT OF CHILDREN’S SERVICES v.
BRENNON HARVILLE and JIMMY HARVILLE, SR.
Juvenile Court for Hamblen County
No. 15360
Filed April 9, 2009
No. E2008-00475-COA-R3-PV
JUDGMENT
This cause was regularly heard and considered by the Court. IT IS NOW
ORDERED that the judgment of the Trial Court is affirmed, and the cause remanded. The
costs of appeal are adjudged jointly and severally to Brennon Lei Harville and Jimmy Carl
Lynn Harville, a/k/a Jimmy Lynn Harville, for which execution may issue if necessary.
PER CURIAM
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