In the Matter of: Jeffery B. and Anne B. ( 2012 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs September 13, 2012
IN THE MATTER OF: JEFFERY B. AND ANNE B.
Direct Appeal from the Juvenile Court for Tipton County
No. 11-JV-224 William A. Peeler, Judge
No. W2012-00924-COA-R3-PT - Filed October 12, 2012
The parental rights of Mother and Father to their two children were terminated based upon
abandonment, persistent conditions, and non-compliance with the permanency plans. We
affirm in part and we reverse in part; however, we affirm the termination of the parental
rights of Mother and Father.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Juvenile Court Affirmed in
Part and Reversed in Part
A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R. F ARMER,
J., and H OLLY M. K IRBY, J., joined.
Taylor D. Forrester, Knoxville, Tennessee, for the appellant, Jeffery B.
Randi L. Johnson, Covington, Tennessee, for the appellant, Clara B.
Robert E. Cooper, Jr., Attorney General and Reporter; Alexander S. Rieger, Assistant
Attorney General, Nashville Tennessee, for the appellee, Tennessee Department of
Children’s Services
OPINION
I. F ACTS & P ROCEDURAL H ISTORY
This case involves the termination of the parental rights of Jeffery B. and Clara B. to
their minor children Jeffery, Jr.,1 born July 15, 1999, and Anne, born October 11, 2001.
The Department of Children’s Services (“DCS”) has had a lengthy involvement with
Jeffery B. (“Father”) and Clara B. (“Mother”). The case history–specifically, regarding the
removal and return of the children to the parents’ custody–prior to the events leading to the
instant termination petition is somewhat unclear. However, it appears that DCS began
working with the parents in 2004 due to reported drug use and an alleged history of truancy
regarding Mother’s oldest daughter, Elizabeth P.2 Mother and Father produced positive drug
screens and were, therefore, ordered by the Tipton County Juvenile Court, in 2004, to
participate in services including Targeted Case Management.3
In 2007, the family again came before the juvenile court regarding the lack of home
school documentation, Mother’s failure to comply with counseling and treatment
recommendations, and continued drug use. In early 2008, Elizabeth P., Jeffery, Jr. and Anne
were removed from the family home, but Jeffery, Jr. and Anne ultimately returned. Elizabeth
P. also returned for a trial visit, but such visit was unsuccessful and she entered DCS custody
on June 24, 2009.
Shortly thereafter, on August 14, 2009, a Protective Custody Order was entered
removing Jeffery, Jr. and Anne from the family home based upon a dependency and neglect
petition filed by the Guardian Ad Litem (“GAL”) which stated that Christopher M.,4
Mother’s adult son, had been found in the family home in violation of a “no contact” order
between him and Jeffery, Jr. and Anne. The juvenile court declared Jeffery, Jr. and Anne to
1
Throughout the record, both “Jeffery” and “Jeffrey” are used. We will use “Jeffery” in this appeal,
as it is the spelling used on the child’s birth certificate.
2
Herbert P. is Liz’s father. The termination petition at issue sought to terminate, among other rights,
Mother’s and Herbert P.’s parental rights to Liz. However, an “Order Dismissing Petition to Terminate
Parental Rights as to Herbert P[.]” was later entered. It is unclear whether this order was effective to dismiss
the action regarding Mother’s rights to Liz. In any event, we find the issue moot as Liz reached the age of
majority on January 12, 2012.
3
This history is taken from the juvenile court’s June 24, 2010 “Adjudicatory and Dispositional
Hearing Order.”
4
Father is not the father of Christopher.
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be dependent and neglected on June 24, 2010.
On September 10, 2009, DCS created permanency plans, approved by the juvenile
court, for Jeffery, Jr. and Anne aimed at returning the children to their parents’ custody. To
that end, the plans set forth the following requirements: (1) Mother and Father will submit
to a drug and alcohol assessment and follow recommendations; (2) Mother and Father will
submit to drug screens; (3) Father will attend parenting classes and Mother will apply
parenting skills learned at prior parenting classes; (4) Mother and Father will attend
therapeutic visitation with the children at least 4 hours per month; (5) Mother and Father will
not allow Christopher M. to be in the home or allow anyone with a known criminal history
to be around the children; (6) Mother and Father will maintain cleanliness in the home; (7)
Mother and Father will continue in their individual counseling, following recommendations
of counselors, and make records available.
At the request of the GAL, the juvenile court referred the family to the Center for
Children and Parents (“CCP”) at the Le Bohneur Children’s Medical Center for further
evaluation regarding, among other things, Mother’s and Father’s capacity to parent
adequately. A Multidisciplinary Team Summary (“Summary”) was issued by a Le Bonheur
Lead Social Worker, Clinical Psychologist, and Psychologist, which included the following
findings:
[Father] and [Mother] each have severe personality and psychiatric difficulties,
likely complicated by drug and/or alcohol abuse, making it impossible for
either of them to function on a day to day basis to maintain a stable home and
stable marriage, or to make responsible parenting decisions. Each accuses the
other of being the cause of all the problems in the family, while
acknowledging little or no responsibility for the role that he/she plays.
[Father] reports a significant history of emotional instability and mental health
issues including depression, anxiety/panic attacks, suicidal ideation and bipolar
disorder. . . . He also has an extensive history of substance abuse and domestic
violence and drug possession. . . . [Father] has demonstrated a longstanding,
persistent pattern of inappropriate parenting of his children in that he has
exposed them to domestic violence, substance abuse, verbal and emotional
abuse and environmental neglect. Despite various interventions and services
offered, [Father] has not shown evidence of increased stability or improved
ability to parent. The prognosis for significant change is extremely poor.
Testing reveals [Mother] to be of average to high average intelligence, with
reading skills at the post-high school level and no obvious visual-motor
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problems. Those assets, however, are offset by serious personality and mood
problems, which were illuminated by other testing. . . . Personality testing
reveals high levels of anxiety, dysthymia, and prominent self-defeating and
dependent personality features. Additionally, there is evidence of fragile self-
esteem, preoccupation with her physical functioning, extremely poor reality
testing and a coping style marked by avoidance and inconsistency. [Mother]
finds it very hard to deal with complex and demanding situations, and to
manage uncomfortable feelings, she resorts to intellectualization, denial, and
externalization of blame and rationalization. It seems that all these factors
have, for a long time, been driving her to abuse alcohol and prescription drugs.
Based upon these findings, the CCP team recommended that Father “become meaningfully
engaged in long-term therapy with a licensed therapist skilled in the treatment of personality
disorders and substance abuse.” Regarding Mother, it found “imperative[,]” “[i]n order to
develop healthier, more adaptive ways of managing her anxiety and coping with daily
stressors,” “that [Mother] receive intensive cognitive-behavioral therapy as an adjunct to any
drug therapy.” It stated that “[t]he setting in which this is most likely to occur would be a
three to six month, inpatient drug and alcohol treatment program, which is recommended for
[Mother].” Finally, the CCP team recommended that “in the absence of concrete evidence
that [Father] and [Mother] have successfully completed services to ameliorate the numerous
problems that currently render them incapable of appropriately parenting their children,
Anne, Jeffrey, and [Elizabeth P.] should not be returned to the custody of their parents.”
As a result of the CCP evaluations, the permanency plans were revised on June 10,
2010, to require the parents’ compliance with the CCP recommendations. Specifically, the
revised plans required the following: (1) Mother will provide proof of AA and NA
attendance; (2) Mother will enroll in long-term inpatient drug and alcohol treatment program;
(3) Father will attend and complete long-term therapy, skilled in treatment of personality and
substance abuse; (4) Mother and Father will address domestic violence in individual
counseling; (5) Mother and Father will have stable means of income.5
On July 25, 2011, DCS filed a Petition to Terminate Rights against Mother and
5
The revised permanency plans state that “Jeff will attend individual counseling to help him become
more assertive.” Father’s counsel concludes that this is a requirement of his client; we tend to disagree.
Throughout the plans, “Jeff” is used to reference the child, whereas “Mr. [B.]” is used in reference to Father.
Additionally, concerns regarding Jeffery, Jr.’s inability to stand up to Anne are raised throughout the record.
In any event, we will not focus on Father’s failure to complete this specific counseling, nor upon any failure
by DCS to exert reasonable efforts in assisting Father with such.
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Father6 alleging the following grounds against both Mother and Father: (1) abandonment -
failure to provide a suitable home; (2) substantial non-compliance with permanency plan; and
(3) persistent conditions. It also alleged the ground of “abandonment - failure to support”
against Mother. A trial was held over three days in November 2011, January 2012 and
February 2012 in the Tipton County Juvenile Court in which extensive testimony was elicited
and numerous exhibits were submitted . Thereafter, on March 27, 2012, the juvenile court
entered an order terminating the parental rights of Mother and Father to Jeffrey, Jr. and Anne.
As to both parents, the juvenile court found the following grounds had been proven by clear
and convincing evidence: (1) abandonment - failure to provide a suitable home; (2)
substantial non-compliance with permanency plan; and (3) persistent conditions.
Additionally, it based Mother’s termination upon her abandonment by failure to support, and
it based Father’s termination upon his abandonment by failure to visit. Thus, the juvenile
court found that DCS had proven each ground alleged, plus it found the additional ground
of abandonment for failure to visit had been proven against Father. Additionally, the juvenile
court determined that DCS had made reasonable efforts and that termination was in the
children’s best interest. Mother and Father timely filed separate notices of appeal.
II. I SSUES P RESENTED
Mother and Father present the following issues for review, as summarized:
1. Whether DCS proved the termination grounds by clear and convincing evidence;7
2. Whether DCS made reasonable efforts to make it possible for the children to return
home; and
3. Whether parental termination is in the best interests of the children.
For the following reasons, we affirm in part and we reverse in part; however, we affirm the
termination of the parental rights of Mother and Father.
6
As stated above, the petition also initially sought to terminate the parental rights of Mother and
Herbert P. to Liz.
7
Curiously, Father challenges only the trial court’s findings of persistent conditions and abandonment
by failure to visit. His brief does not list as an issue for review, whether the trial court erred in finding
abandonment by failure to provide a suitable home. However, within his argument that the trial court erred
in finding persistent conditions, he argues that he has maintained a suitable home. Thus, out of an abundance
of caution, we will consider whether the trial court erred in terminating Father’s parental rights based upon
abandonment by failure to provide a suitable home.
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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 Clause 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 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 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. Because no civil
action carries graver consequences than a petition to sever family ties forever, both of the
elements for termination must be proven by clear and convincing evidence. Id. at 860-61.
In sum, “[t]o 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 F.R.R., III, 193 S.W.3d 528, 530
(Tenn. 2006) (citing In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002)). Clear and
convincing evidence has been defined as evidence that “eliminates any serious or substantial
doubt concerning the correctness of the conclusion to be drawn from the evidence.” In re
L.J.C., 124 S.W.3d 609, 619 (Tenn. Ct. App. 2003) (quoting In the Matter of: C.D.B., S.S.B.,
& S.E.B., 37 S.W.3d 925, 927 (Tenn. Ct. App. 2000)). 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
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finding to be correct unless the evidence preponderates against it. Id. Second, we must
determine whether the facts (either as found by the trial court or as supported by the
preponderance of the evidence) clearly and convincingly establish the elements required to
terminate parental rights. Id. 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. Grounds for Termination
1. Abandonment
The first ground for termination listed in the statute, and the one most frequently relied
upon, 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). The two definitions relevant in this case define
“abandonment” as where:
(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) or guardian(s) of the child who is the subject of the petition for
termination of parental rights or adoption, that the parent(s) or guardian(s)
either have willfully failed to visit or have willfully failed to support or have
willfully failed to make reasonable payments toward the support of the child[.]
(ii) The child has been removed from the home of the parent(s) or guardian(s)
as a 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
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a degree that it appears unlikely that they will be able to provide a suitable
home for the child at an early date.
Abandonment can be established by showing that a parent either willfully failed to visit,
willfully failed to provide support, or made no reasonable efforts to provide a suitable home.
These failures must have occurred in the four months immediately preceding the filing of the
termination petition currently before the court. Tenn. Code Ann. 36-1-102(1)(A)(i),(ii); see
also In re D.L.B., 118 S.W.3d 360, 366 (Tenn. 2003). Again, the termination petition was
filed on July 25, 2011; therefore, the relevant period is March 25 to July 25, 2011.
a. Failure to Visit
Pursuant to the permanency plans, Mother and Father were required to attend
supervised therapeutic visitation with the children at least four hours per month. The bi-
weekly two-hour visits occurred in Jackson, and Mother and Father lived in Covington.
Because of transportation issues, DCS typically transported the parents to the visits.
At trial, testimony was elicited regarding the parents’ visitation with the children. It
was undisputed that Mother attended most of the scheduled visits, and her parental rights
were not terminated on this ground. However, Father’s parental rights were terminated, in
part, on this basis, and with the exception of Father’s own testimony, the evidence indicated
that Father frequently missed scheduled visits.
DCS family service worker Teresa Harris, who began assisting the parents with
visitation transportation in March 2011, testified that, at some point, in an effort to stimulate
the parents’ own initiative, DCS agreed to transport the parents to only one visit per month,
thus obligating the parents to secure independent transportation to the other visit. However,
when the parents were unable to meet this obligation, DCS made arrangements to transport
the parents “to most all of the visitations.” Despite DCS assistance, however, Teresa Harris
testified that “[Father] had attended a few of the visitations[,]” surmising that “he’s missed
half[.]” She explained that after retrieving Mother for a visit, she would drive by Father’s
home to offer him a ride, but she “could not catch up with him[.]” Father offered her no
explanation for his absences. Similarly, team leader Veronica Gooch testified that Father had
failed to maintain regular visitation with the children.
At trial, Father claimed that at least four scheduled visits were cancelled without prior
notice to him. However, when asked whether he had missed “any scheduled visits,” he
acknowledged that he had because he “was sick and running a fever[.]”
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In its order terminating parental rights, the juvenile court found that Father had
abandoned the children “because he willfully failed to visit with the children when he was
afforded the opportunity to do so, [and because] he missed numerous appointments and
opportunities to visit even when transportation was provided by DCS.” On appeal, Father
again alleges that visits were cancelled, apparently by DCS, without being rescheduled. He
also claims that he testified at trial that he “missed only one (1) visit because he was running
a fever.” Therefore, Father claims “there is no evidence” to establish abandonment by
willfully failing to visit.
Although not mentioned by the parties on appeal, we note that the Petition to
Terminate Parental Rights does not allege the ground of abandonment by failure to visit
against Father.8 Although testimony regarding visitation was elicited, this testimony relates
not only to abandonment, but also to failure to comply with the permanency plans, which
required visitation. Moreover, in opening statements before the juvenile court, Father’s
counsel specifically noted that abandonment by failure to visit had not been alleged against
Father, and it does not appear that DCS attempted to assert the ground against him.
Accordingly, we cannot find that this issue was tried by the juvenile court pursuant to
Tennessee Rule of Civil Procedure 15.02, and therefore, we must find that the juvenile court
erred in terminating Father’s parental rights on this ground.
b. Failure to Support
As stated above, “abandonment” includes situations where a parent has “willfully
failed to visit” or has “willfully failed to make reasonable payments toward the support of
the child.” Tenn. Code Ann. § 36-1-102(1)(A)(i). “[W]illfully failed to support” or
“willfully failed to make reasonable payments toward such child’s support” is defined as “the
willful failure, for a period of four (4) consecutive months, to provide monetary support or
the willful failure to provide more than token payments9 toward the support of the child[.]”
Tenn. Code Ann. § 36-1-102(1)(D).
In its order terminating parental rights, the juvenile court found that although Mother
was aware of her duty to support the children, she had, without justifiable excuse, failed to
provide support beyond token gifts. It found that even if she could not pay the court-ordered
8
This ground was, however, raised as to Herbert. P.
9
“Token support” under the statute “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).
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amount,10 that she “could have paid something[.]” 11 Thus, it terminated Mother’s parental
rights on this ground.
On appeal, Mother concedes that she has paid no child support since Jeffery, Jr. and
Anne were taken into DCS custody.12 However, Mother argues that such failure is not willful
because she lacks the ability to pay.
Again, the relevant time period for support is March 25, 2011 to July 25, 2011. At
trial, Mother testified that from January to May 2011, she received $38.00 per month in
disability benefits. However, in June 2011, she began receiving disability benefits of $700
per month. As of January 2012, she was also receiving $200 per month in food stamps, but
it is unclear when such benefits began. Mother testified that even with the current $700
disability benefits and $200 in food stamps, after deducting her $400-$500 per month rent
as well as her utility costs, she is left with only $100-$150.
“Willfulness” in the context of a parental termination does not require the culpability
required by the penal code. In re Audrey S., 182 S.W.3d at 863 (citation omitted). Ill will
is not required. Id. Rather, “[w]illful conduct consists of acts or failures to act that are
intentional or voluntary rather than accidental or inadvertent.” Id. (citations omitted).
“‘[F]ailure to support a child is ‘willful’ when a person is aware of his or her duty to support,
has the capacity to provide the support, makes no attempt to provide the support, and has no
justifiable excuse for not providing the support.’” In re Emilie A.M., No. E2011-02416-
COA-R3-PT, 2012 WL 4053040, at *7 (Tenn. Ct. App. Sept. 17, 2012) (citing In re M.L.D.,
182 S.W.3d 890, 896 (Tenn. Ct. App. 2005)).
Simply put, the evidence presented does not demonstrate that Mother “has the capacity
to provide the support” ordered. During two of the relevant four months, Mother’s income
was at most $238,13 which is less than her rent obligation. Moreover, the record is lacking
10
Despite a thorough review of the record, we have been unable to determine the amount ordered to
be paid by Mother.
11
From the bench, the juvenile court stated that it found “no evidence of long-term disability that
would prevent [Mother] from working and no evidence of any true effort on her part to get a job or to
improve her situation[.]” However, it does not appear that the trial court’s oral ruling was incorporated into
its written order. See In re Adoption of E.N.R., 42 S.W.3d 26, 31 (Tenn. 2001) (“[A] court speaks through
its order, not through the transcript.”).
12
At trial, Mother testified that she’s “taken [her] children money and clothes and things.”
13
This calculation includes $200 in foods stamps, which she may have been receiving at this time.
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regarding Mother’s employability, and her receipt of disability benefits weighs against a
conclusion that she was able to obtain employment. See State, Dept. Of Children’s Servs.
v. Peterson, 341 S.W.3d 281, 290 (Tenn. Ct. App. 2009) (noting that the mother was “able
bodied and capable of working” in its abandonment by failure to support analysis). In sum,
we find that DCS failed to demonstrate Mother’s willful failure to support the children
during the four-month period preceding the termination petition, and therefore, we find that
the juvenile court erred in terminating her parental rights on this ground.14
c. Failure to Provide a Suitable Home
Both parents’ parental rights were terminated based upon the trial court’s finding that
they had abandoned the children by failing to provide a suitable home. According to the
parties, Mother and Father have lived apart since mid-2010. Much evidence was presented
at trial on the state of their respective homes.
At trial, CASA Elaine Crown testified that Mother has a “hoarding issue” and she
described Mother’s home as follows: “There were dirty dishes this high on top of the table,
the sink was full of dishes, there was food, . . . there were boxes. It was . . . really awful.”
She described Mother’s home as “very cluttered” and the bedrooms “in disarray.” She stated
that the “sheets on the bed, I’m sorry, didn’t look like they had been washed in a couple of
years. The carpets were filthy, filthy. There was stuff piled everywhere. Not in the
bedrooms so much . . . . But the clutter in the living room and kitchen was still really awful,
and it just was not - - not a fit place for children to live.” Ms. Crown testified that between
August 2010 and March 2011, Mother’s home had no working water, and therefore, she
flushed her toilets by filling buckets of water at a gas station. At trial, Ms. Crown stated she
asked Mother whether she believed the children could live in such an environment, to which
Mother replied, “well, I guess really not.”
Despite Mother’s lack of cooperation in providing access to her home, CASA Elaine
Crown completed a home study in Mother’s home. Her report, dated September 2011, was
entered into evidence. In her report, Ms. Crown expressed “grave concerns” with allowing
the children to return home, noting that Mother “has not even mentioned her hoarding
problem to her therapist let alone started working on it.” She stated that Mother’s “house
was much, much worse than when she last allowed me in 18 months ago.” Specifically, she
noted that the house was not adequately furnished, that it was hard to determine whether
essential items were present due to the “immense clutter,” and overall, that the home was
14
We further note that in closing arguments, DCS argued that Mother had failed to demonstrate an
ability to provide a stable income. It contended that even with her current disability benefits, there remained
a question as to whether she would be able to afford essential services and child-rearing expenses.
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“unsanitary[,]” “[f]ilthy, cluttered, [and] looked like it hadn’t been touched in months (if not
at least a year).”
DCS team leader Veronica Gooch similarly testified that Mother’s home is not a
healthy and safe environment for the children and she acknowledged disrupted utility
services to the home. However, Ms. Gooch had been unable to enter Mother’s home since
2010 because Mother explained that she needed to “clean things up” before she would allow
her inside.
At trial, in response to CASA Elaine Crown’s testimony regarding a stack of dishes
left in Mother’s kitchen, Mother stated that the dishes were actually clean. She further
claimed that the doors and windows of her home were not “cluttered or stacked up[,]” and
that the home’s overall clutter problem had improved. However, Mother acknowledged, “It
has been difficult to afford the necessary things to put things in their place and cleaning
products and so forth, you know, to - - to do an absolute makeover.” She testified that the
home currently had working utilities.
DCS family service worker Teresa Harris testified that Mother has not allowed her
to enter her home in order to observe its conditions. However, she had twice visited Father’s
home, mostly recently in September 2011, describing it as “like a two-bedroom apartment
and . . . his bedroom is set up. The second room is not set up. It’s cluttered, but that’s home
for him.” Ms. Harris testified that “The home may be liveable for [Father], but I don’t think
it would be liveable for a child at this present state the way it’s set up, no.” She stated,
“There was a broken-down bed, there was boxes, there was clothing items. It was stuff. You
had to walk around the stuff just to get to this bedroom there in the back. I’m not
exaggerating.” stated that “you’re going to have to really move - - take all this stuff out of
there . . . in order to really set it up to be liveable.” Ms. Harris also expressed concern about
a 12 year-old boy and a 10 year-old girl sharing a “very small room[,]” but Father testified
that if the children are returned, he would prepare the second bedroom and he would sleep
on the couch or recliner, as he claimed he does currently, and allow each child to have his
or her own bedroom. When asked whether Father’s home could become suitable by clutter
removal and preparation of the second bedroom, Ms. Harris replied, “I couldn’t say. But all
I know is right now, it is cluttered.” Ms. Harris was concerned that, like Mother, Father may
also have a hoarding problem. She explained that “What I would consider junk to me would
be considered treasure for him.” She did state that Father’s home had working utilities.
CASA Elaine Crown also testified regarding her “great concerns about the safety” of
Father’s home. She stated, “There’s only a front door; there’s not a back door. There are
only three windows[, which are too high for escape]. And if there were a fire, there’s no way
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for the children to get out. . . . There was . . . quite a bit of clutter when I was there.” Ms.
Crown testified, “I don’t see Jeff or Anne being able to live there.” However, in her
homestudy report, Ms. Crown found that Father’s home was equipped with adequate food
and essential items. Further, she found the kitchen clean, the bathroom “relatively clean,”
and the house sanitary, although the carpets needed to be cleaned. She found the bedrooms
were cluttered, but she noted that this was partially due to the presence of a prior tenant’s
belongings, which were to be removed.
In response, Father testified that “the [clutter] situation wasn’t nearly as bad” as Ms.
Teresa Harris testified, and he claimed that “the situation has been rectified.” He stated that
the utilities had been connected without interruption since he moved into the home one and
one-half years prior, and that the home had a working stove, refrigerator, toilet, shower, and
bathtub. He further stated that the home was stocked with food and that the two bedrooms
were equipped with beds. During his testimony, several photographs of his home were
introduced depicting the home as well-equipped and without significant clutter. However,
from the record, we cannot determine when these photographs were taken.
In its Order on Petition for Termination of Parental Rights, the juvenile court made
the following relevant findings of fact:
[T]he testimony revealed that both homes of the Respondents remained
cluttered; that there were hoarding issues; that [Mother] would not allow
access to the home so that it could be inspected; and that [Father]’s home did
not meet the standards that CASA and DCS felt were safe and adequate for the
children to return home.
Further, it made the following conclusion of law:
[T]he Respondents have not fully addressed their drug and alcohol issues; their
domestic violence issues and their mental health concerns. Further, the
Respondents have demonstrated a lack of concern for the children to such a
degree that it appears unlikely that they will be able to provide a safe and
suitable home for the children at an early date.
We find clear and convincing evidence to establish abandonment by both parents by
failure to provide a suitable home.15 The overwhelming evidence indicates that when case
15
We specifically reject Mother’s assertion, on appeal, that in determining whether Mother provided
a suitable home, we may look only at whether the issue which brought the children into custody–according
(continued...)
-13-
workers were allowed in her home, Mother’s home was found to be excessively cluttered,
unsanitary, and ultimately, unsuitable. Even if we assume that the photographs of Father’s
home demonstrate improvement in his hoarding tendencies, “a suitable home requires more
than a physical space.” In re A.D.A., 84 S.W.3d 592, 599 (Tenn. Ct. App. 2002) (noting that
a child with permanent injuries required a home with the presence of a care giver, unlike the
drug addicted mother); see also In re Noah D., No. M2011-01087-COA-R3-PT, 2012 WL
184347, at *4-5 (Tenn. Ct. App. Jan. 20, 2012) (finding that a suitable home for the children
required someone who could supply care and attention on a consistent basis).
The lack of a suitable environment in Father’s home was clearly and convincingly
demonstrated at trial. The CCP Summary stated:
[Father] reports a significant history of emotional instability and mental health
issues including depression, anxiety/panic attacks, suicidal ideation and bipolar
disorder. . . . He also has an extensive history of substance abuse and domestic
violence and drug possession. . . . [Father] has demonstrated a longstanding,
persistent pattern of inappropriate parenting of his children in that he has
exposed them to domestic violence, substance abuse, verbal and emotional
abuse and environmental neglect.
Based upon this finding, Father was required to, among other things, attend and complete
long-term therapy skilled in treatment of personality and substance abuse, and to address
domestic violence in individual counseling. However, Father acknowledged that he has not
fulfilled these requirements, although he did pass two drug screens.
Moreover, the CASA testified that she would go “weeks and weeks” without
successfully contacting Father, and when she would finally make contact, he explained that
he had stopped visiting the children because “he was just so depressed that he couldn’t . . .
bear to talk about it and he didn’t want to see anybody or talk to anybody, which concerned
[her.]” Elizabeth P. also testified that Father has “a little bit of an anger problem. He - - he’d
have his outbursts towards my mother[,] me[,] and the children. And, I mean, he has been
violent with my mother as well as me and my older brother.” She stated that in order for the
children to return, Father “would have to have serious counseling issues about his . . .
bipolarness, I guess you could call it, his extreme anger outbursts, and then his extreme
apologetic stages that just went straight back to the anger.” She explained,
15
(...continued)
to Mother, Christopher M.’s presence in the home–has been remedied. The statutory ground simply does
not limit our review as Mother suggests.
-14-
[Father] would have the outbursts where he would get completely upset and,
you know, he’d go on a rampage and then he’d come back after a minute and
he would just like be so - - so apologetic. You know, like . . . oh, my gosh, I
can’t believe this happened, I just want to go . . . hit my head on something I
feel so bad. But then he’d go back and do the same things again.
....
It was mostly verbal arguments. But sometimes it would get a little bit on the
physical side. He would grab [Mother] or push [Mother] or something [of]
that nature. Never hit her[.]
Elizabeth P. further testified that Father used illegal drugs in the family home. Moreover,
Father was arrested eight times between 1997 and 2010 on domestic violence charges, as
well as four times between 1997 and 2008 on alcohol and drug related charges.
Beyond the physical state of Father’s home, based upon Father’s failure to address his
serious mental health, drug, and domestic violence issues, we find clear and convincing
evidence exists to support the trial court’s determination that he abandoned the children by
failing to provide a suitable home for them.
2. Substantial Non-Compliance with Permanency Plan
Parental rights may be terminated upon finding clear and convincing evidence that
“[t]here has been substantial noncompliance by the parent . . . with the statement of
responsibilities in a permanency plan[.]” Tenn. Code Ann. § 36-1-113(g)(2). “Terminating
parental rights based on Tenn. Code Ann. § 36-1-113(g)(2) requires more proof than that a
parent has not complied with every jot and tittle 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).16
16
See also Tennessee Code Annotated section 37-2-403(a)(2)(C): “Substantial noncompliance by the
parent with the statement of responsibilities provides grounds for the termination of parental rights,
notwithstanding other statutory provisions for termination of parental rights, and notwithstanding the failure
of the parent to sign or to agree to such statement if the court finds the parent was informed of its contents,
(continued...)
-15-
Here, the juvenile court found that the permanency plan requirements are “all
reasonable and related to remedying the conditions that necessitated foster care and are
particularly important in reducing the risk of harm to children so that the children could be
safely returned to their parents’ care.” However, the court found that Mother and Father had
failed to substantially comply with these requirements, and therefore, it terminated their
parental rights pursuant to Tennessee Code Annotated section 36-1-113(g)(2). Specifically,
the court found:
The record is replete with evidence of non-compliance, including but definitely
not limited to, [Mother] failing to enter a long-term inpatient alcohol and drug
program; [Father] failing to obtain a parenting assessment and a mental health
assessment; both [Father and Mother] failing to comply with the CCP
recommendations, as well as[] failing to address their domestic violence issues
other than by simply separating.
On appeal, Father does not argue that he substantially complied with the requirements
of the permanency plans. Instead, he argues that DCS failed to exert reasonable efforts.17 His
argument will be addressed below.
On appeal, Mother asserts alternative arguments regarding the substantial compliance
issue. First, she contends that “the sole reason the children came into custody was because
Mother was allowing Christopher M. to be around the children,” and that the permanency
plans’ requirements concerning “drug- and alcohol-related mental health issues, domestic
violence, and hoarding” are not reasonably related to prohibiting contact between
Christopher M. and the children. Alternatively, she argues that if the children were removed
for reasons beyond the no-contact order violation, that the requirement that she complete a
three-to-six month inpatient treatment program was unreasonable because she completed a
28-day program at Serenity. As a second alternative, Mother argues that she substantially
complied with the permanency plans’ requirements by completing the Serenity program, by
attending AA meetings, by maintaining a stable income and by providing a clutter-free home.
16
(...continued)
and that the requirements of the statement are reasonable and are related to remedying the conditions that
necessitate foster care placement.” (emphasis added).
17
Insofar as Father’s brief could be construed as arguing that he substantially complied with the
requirements of the permanency plans, we find that he did not. The evidence indicated that he failed to,
among other things, “become meaningfully engaged in long-term therapy with a licensed therapist skilled
in the treatment of personality disorders and substance abuse,” he failed to continue individual counseling,
and he failed visit the children as required.
-16-
Mother correctly points out that the Guardian Ad Litem’s August 13, 2009 Petition
for protective custody represented that the children were dependent and neglected based upon
her attached recitation of facts related to Christopher M. being found in the then-family home
in violation of a protective order. Specifically, the attachment stated that Christopher M. had
failed to appear in court on several occasions, and a capias has been issued for his arrest.
Christopher M.’s bonding company received a tip that he had been hiding at the home of
Mother and Father. The bonding company observed Christopher M. smoking a cigarette out
of a back window of the home. When no one answered the bonding company’s knocks and
calls at the door, a bonding company representative kicked the door, and Mother then
allowed the representatives inside. The representatives observed Mother, Father, Jeffery, Jr.
and Anne in the home, but Mother denied that Christopher M. was present. However,
Christopher M. was located in a bedroom, which Anne had just exited. According to the
GAL’s petition, Christopher M. “was hidden in a small cabinet or chest which had been
locked or latched shut with clothes piled up in front of the door. . . . Christopher M.
attempted to stab [the bonding company representative] with a pen and fought with him as
[the representatives] attempted to take him into their custody.” A bottle of liquor was found
in the bedroom, and the representatives believed Christopher M. had been drinking.
First, we reject Mother’s contention that the permanency plan requirements may be
related only to the detrimental conduct specifically alleged in the GAL’s dependency and
neglect petition. As cited above, the relevant statute requires only that the permanency plan’s
requirements “are related to remedying the conditions that necessitate foster care
placement.” Tenn. Code Ann. § 37-2-403(a)(2)(C). (emphasis added). In any event,
although the initial permanency plans created for Jeffery, Jr. and Anne indicate that Mother’s
harboring of Christopher M. led to state custody, the plans further indicate that her “ability
to protect the children from harm. Lack of supervision of older sibling Elizabeth [P.] and
persist[e]nce of condition” prevent the children from exiting state custody, thus necessitating
foster care placement. Regarding “persistence of condition,” the petition to adjudicate
Elizabeth P. recites reported drug use by both parents, and her permanency plan indicates
the parents’ need to obtain mental health/parenting assessment to identify issues contributing
to their “troubled family situation.”
Again, the permanency plans set forth the following requirements: (1) Mother will
provide proof of AA and NA attendance; (2) Mother will enroll in long-term inpatient drug
and alcohol treatment program; (3) Father will attend and complete long-term therapy, skilled
in treatment of personality and substance abuse; (4) Mother and Father will address domestic
violence in individual counseling; (5) Mother and Father will have stable means of income;
(6) Mother and Father will submit to a drug and alcohol assessment and follow
recommendations; (7) Mother and Father will submit to drug screens; (8) Father will attend
parenting classes and Mother will apply parenting skills learned at prior parenting classes;
-17-
(9) Mother and Father will attend therapeutic visitation with children at least 4 hours per
month; (10) Mother and Father will not allow Christopher M. to be in the home or allow
anyone with a known criminal history to be around the children; (11) Mother and Father will
maintain cleanliness in the home; and (12) Mother and Father will continue in their
individual counseling, following recommendations of counselors, and make records
available.
We agree with the trial court’s conclusion that these objectives were reasonably
related to addressing the problems identified in the family home which necessitated the
children’s removal–namely, suitable home, parenting, drug/alcohol, mental health, and
domestic violence issues. Specifically, we find reasonable the requirement that Mother
complete a long-term inpatient drug and alcohol treatment program, which was
recommended by the CCP at LeBonheur.
At trial, Mother acknowledged that the 28-day Serenity and the 3-6 month Memphis
Recovery programs were not equivalent to one another, but she determined, herself, that
Serenity was enough to meet her needs. The highly-qualified professionals at the CCP at
the Le Bohneur Children’s Medical Center, after an extensive evaluation of Mother, found
it “imperative[,]” “[i]n order to develop healthier, more adaptive ways of managing her
anxiety and coping with daily stressors,” “that [Mother] receive intensive cognitive-
behavioral therapy as an adjunct to any drug therapy.” It stated that “[t]he setting in which
this is most likely to occur would be a three to six month, inpatient drug and alcohol
treatment program, which is recommended for [Mother].”
We find no basis for concluding that requiring Mother to complete a long-term
inpatient program was unreasonable. We note that Mother was fully aware that long-term
therapy was required of her before she made the independent decision to enroll in short-term
therapy. Moreover, we find that Mother’s completion of a short-term 28-day program, which
did not include detoxification, did not substantially comply with the requirement that she
complete long-term inpatient therapy with detoxification. Similarly, we reject Mother’s
argument that she substantially complied with the requirements of the parenting plans by
attending AA meetings, by maintaining a stable income and by providing a clutter-free home.
At trial, despite Mother’s claim that she received a six-month AA chip, she was unable to
produce any proof of AA attendance, extensive testimony of deplorable living conditions was
presented, and although Mother testified regarding disability benefits, she nonetheless, would
struggle to provide for the children. The trial court’s finding that Mother failed to
substantially comply with the requirements of the permanency plans is affirmed.
-18-
3. Persistent Conditions
Finally, the juvenile court found that DCS had established by clear and convincing
evidence the ground for termination commonly referred to as “persistent conditions” which
is set forth in Tennessee Code Annotated section 36-1-113(g)(3)(A)-(C):
(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 diminished the child’s chances of early integration into a safe,
stable and permanent home[.]
On appeal, Father attempts an argument previously raised by Mother with regard to
other issues. He contends that “[t]he sole reason for the removal of [the children] was based
on the violation of the [no-contact] order[,]” and therefore, that by separating from Mother,
“he has remedied the sole initial [reason] for the removal of the minor children.” This
argument again fails. The relevant statute clearly states that persistent conditions may be
found where, among other requirements, “[t]he 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[.]” Tenn. Code Ann. § 36-1-113(g)(3)(A) (emphasis
added).
The evidence presented at trial overwhelmingly demonstrated that the conditions
which prevented the children’s safe return continue to persist and are unlikely to be remedied
quickly so that the children may be returned to their parents’ homes. As was more fully
discussed above, Father has a long history of substance abuse, mental illness, and domestic
violence, which remains untreated. Although Mother and Father were separated at the time
of trial, and Father claimed that he was “physically scared” of Mother, the juvenile court
expressed concern regarding their relationship, noting that “the evidence at trial indicates that
he still watches her home to observe the going and coming of others[,]” and DCS team leader
Veronica Gooch testified that his domestic violence issues should be addressed
-19-
notwithstanding the parties’ separation, because domestic violence could “possibly” occur
with whomever he resides. Moreover, Father refused to accept responsibility for his poor
choices, blaming the domestic violence arrests on being set-up by Mother and Christopher
M., indicating that he is unlikely to seek assistance regarding these issues.
Similarly, Mother has failed to address her serious issues related to alcohol and drug
abuse and environmental neglect, and it appeared that Christopher M. still frequents her
home. At trial, Mother acknowledged her alcohol abuse, explaining that when she ran out
of her prescribed medication, she would self-medicate with alcohol, drinking two pints of
vodka per week. She also acknowledged smoking marijuana on “a few occasions.”
Additionally, Father testified that Mother drank vodka every day and that he had seen Mother
use illegal drugs in front of the children. This testimony was corroborated by Elizabeth P.,
who testified that Mother smoked marijuana in the home, and that she had to hide alcohol
from Mother, as well as by Mother’s arrest record, which included various drug charges.
DCS family service worker Teresa Harris testified regarding Mother’s non-compliance with
drug testing, stating that “more than once” Mother failed to appear for the testing. Moreover,
Mother failed to complete the required long-term inpatient drug and alcohol treatment,
determining, on her own, that a short-term program without detoxification was sufficient.
Like Father, Mother refused to accept responsibility for her poor choices. She testified that
it has been the GAL’s “goal from the very beginning to alienate [her] children from [her],
to keep [them] separated as long and as far apart as possible.”
DCS team leader Veronica Gooch testified that Mother had domestic violence issues
with Christopher M. as well as with Father, even after Mother and Father separated.
However, despite a referral by DCS, Mother failed to address these issues in individual
counseling. In fact, Mother thwarted counseling efforts by destroying a release of
information document previously executed which authorized DCS to access Mother’s
physical and mental health records. However, at trial, Mother testified that she had begun
counseling one week prior to trial.
At trial, Mother testified that Christopher M. does not live with her, but that “[h]e
comes and goes.” She claimed, however, that if the children are returned to her that she will
keep Christopher M. away from them. However, when Veronica Gooch visited Mother’s
home in July 2011, she saw Christopher M. exiting through the back door, and he answered
affirmatively when she asked whether he lived with Mother. A short time later, Mother
acknowledged to Ms. Gooch that Christopher M. was living with her “because he didn’t have
anywhere to go at that time.” Additionally, at trial, Father testified that he had not been in
Mother’s home in the prior year and a half, but that he had seen Christopher M. “come out
of the house on three occasions.” However, Sherry Harris testified that when she visited
Mother’s home she saw no one living in the home with Mother. CASA Elaine Crown
-20-
testified that she was allowed into Mother’s home once in 2011. She saw no evidence that
Christopher M. was living there, but she asked Mother for, and never received, Christopher
M.’s address. In its order terminating parental rights, the juvenile court made a factual
finding that “Christopher [M.] still lived in [Mother’s] home (allegedly not all the time)
despite the no-contact order.” The evidence presented certainly does not preponderate
against this finding.
In sum, we find that the conditions which prevented the children’s return to Mother
and Father–including, but not limited to, drug and alcohol abuse, mental health issues,
domestic violence, environmental neglect, and the presence of Christopher M.–continue to
persist and are unlikely to be remedied in the near future. Thus, we affirm the trial court’s
termination of the parental rights of Mother and Father on the ground of persistent
conditions.
B. Reasonable Efforts18
Having determined that grounds for the termination were clearly and convincingly
proven, we now address the parties’ arguments regarding the adequacy of DCS’s efforts in
this case. Our Supreme Court recently addressed DCS’s statutory obligation to use
“reasonable efforts” to preserve, repair, and restore parent-child relationships whenever the
circumstances require it to intervene in family matters. In re Bernard T., 319 S.W.3d 586(Tenn. 2010). The Court explained:
The General Assembly has characterized the reasonable efforts that the
Department must make “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.” Tenn. Code Ann. § 37-1-166(g)(1). Accordingly, the manner in
which the Department renders services must be reasonable, not herculean. In
re Georgianna 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);
18
At trial, Father’s counsel alleged that DCS had failed to respond to discovery requests regarding
its reasonable efforts, and therefore, that DCS should be estopped from alleging that such reasonable efforts
were made. However, the juvenile court determined that Father should have filed a Tennessee Rule of Civil
Procedure 37 motion to compel, and the juvenile court found that Father’s Rule 37 motion made at trial came
too late. Father does not challenge the trial court’s ruling in his list of “Issues Presented for Review,” but
he attempts to raise it, without citation to authority, within his “reasonable efforts” argument. Because Father
failed to properly present the issue before us, we decline to address it.
-21-
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 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 condition 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. (footnotes omitted). The child’s health and safety shall be the paramount concern. Tenn.
Code Ann. § 37-1-166(g)(1).
On appeal, Father contends DCS failed to assist him in locating therapy facilities. At
trial, Father testified that he had difficulty locating a therapist specializing in the treatment
of personality disorders and substance abuse, and he had his attorney draft a letter to DCS
indicating such and requesting assistance. However, according to Father, “a lack of
reasonable efforts was displayed by Sherry Harris when she suggested [he] should locate an
appropriate therapist by going through the telephone book[,]” and when she allegedly
admitted that she did not help Father locate a therapist. He further claims that a lack of
reasonable efforts was demonstrated when Teresa Harris testified that she contacted no
therapy facilities on Father’s behalf because she was unaware of a duty to do so.19
Father is correct that, at trial, Teresa Harris testified that she had not assisted Father
in contacting psychiatric/therapeutic counseling facilities. She explained, however, that
Father never indicated to her that he was having difficulty locating the specific counseling
needed, he never sought her assistance in arranging counseling, she was unaware she was to
assist in such scheduling, and importantly, that a prior caseworker “had assisted [Father] with
trying to locate an agency that would meet his needs[,]” but after a therapy appointment was
scheduled, Father failed to show up. Similarly, Veronica Gooch testified that Sherry Harris
19
Both Father and Mother also allege that DCS failed to file an affidavit of reasonable efforts
pursuant to Tennessee Code Annotated section 37-1-166(c). However, “failure to comply with this statutory
requirement, is not fatal as long as DCS presents sufficient, specific evidence to establish the reasonableness
of its efforts.” In re Arteria H., 326 S.W.3d 167, 179 (Tenn. Ct. App. 2010) (citations omitted).
-22-
had assisted Father with finding facilities that provided the specific counseling required by
the CCP. DCS, apparently like Father, experienced difficulties locating such facilities, but
Ms. Harris ultimately located a facility, and she arranged for both Father’s admission and
transportation; however, Father failed to show up.20 Based upon this testimony, we conclude
that DCS exerted reasonable efforts to assist Father in obtaining the requisite therapy.
In his brief to this Court, Father argues that “The continuance of any other persistent
conditions [beyond the presence of Christopher M.] arguably continues to exist because of
DCS’ failure to employ reasonable efforts.” In response to his vague argument, we further
note that DCS assisted Father in obtaining a CCP evaluation and an alcohol/drug assessment,
but Father did not follow through with the recommendations; DCS offered transportation to
supervised visitation, but Father failed to attend at least half the time; and DCS instructed
Father to arrange parenting classes, even providing him with a phone number, but Father
failed to complete the required classes, although he at first lied by stating that he had.
In her brief, Mother acknowledges that DCS “provided her with transportation to her
visits with the children, arranged for her to enter inpatient treatment at Memphis Recovery
Center, and paid for and facilitated the CCP evaluation.” However, she contends that
reasonable efforts were not made because “there is no evidence in the record that DCS
provided a mental health assessment other than the CCP evaluation or the parenting
assessment.” She also states that it is unclear whether the homemaker services and drug and
alcohol assessment were provided to Mother during a prior episode with the family or during
the current custodial episode. She also claims that DCS failed to assist her in securing out-
patient, in-home counseling, which would have been more convenient given Mother’s
transportation difficulties.
It is unclear why Mother suggests a mental health assessment beyond the expensive,
comprehensive CCP evaluation was necessary.21 Additionally, even if DCS did not provide
a drug and alcohol assessment to Mother during the current custodial episode, it nonetheless,
exerted reasonable efforts to address her drug and alcohol issues–specifically, it arranged for
20
Father testified that he was forced to cancel the appointment because DCS could not provide him
with transportation. Sherry Harris stated that Father had misstated the appointment date, and she was unable
to make transportation arrangements on short notice.
21
On appeal, Mother points out that the CCP evaluation was not completed within four months of
the children’s removal. However, of the termination grounds alleged, only abandonment requires that
reasonable efforts be made within four months. Of the abandonment types, only abandonment for failure
to provide a suitable home was found by this Court against Mother–a ground, as to Mother, unrelated to the
CCP evaluation. Moreover, with regard to Father, reasonable efforts to remedy Father’s abandonment were
made within four months of removal–for example, assistance with parenting skills and drug screening.
-23-
her to enroll in long-term inpatient drug and alcohol treatment program, which she failed to
attend. Further, Mother’s environmental neglect issues could have been addressed in
therapy, but Mother failed to complete such or even to notify her therapist of her hoarding
problem. Moreover, Mother failed to make environmental improvements following her prior
homemaker services–in fact, the situation progressively worsened–and Mother often refused
DCS personnel access into her home to observe its conditions. Finally, we refuse to hold
DCS responsible for failing to assist Mother in securing a counseling type of her choosing
which did not comply with the permanency plans’ requirements. We affirm the trial court’s
finding that DCS exerted reasonable efforts to both Father and Mother in this case.
C. Best Interests
Once a ground for termination is established by clear and convincing evidence, we
must consider whether termination of parental rights is in the children’s best interest. In
evaluating the children’s best interest, we are to consider numerous factors including, but not
limited to, those set forth in Tennessee Code Annotated section 36-1-113(I):
(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
-24-
healthy and safe, whether there is criminal activity in the home, or whether
there is such use of alcohol, controlled substances or controlled substance
analogues as may render the parent or guardian consistently unable to care for
the child in a safe and stable manner;
(8) Whether the parent’s or guardian’s mental and/or emotional status would
be detrimental to the child or prevent the parents 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.
As discussed at-length above, both Father and Mother have failed to address their
significant alcohol and drug, mental health, and domestic violence issues, which prevents the
children’s safe return to their homes. Their lack of motivation to comply with the
requirements necessary to bring about a return of the children indicates that no lasting
adjustment will soon be made. Additionally, Christopher M., who engaged in domestic
violence with Mother and who has an extensive criminal record for drug abuse and violent
conduct, continues to “come[] and go[]” in Mother’s home.
The children entered DCS custody in August 2009; however, prior to then, the
children had “been in and out of their parents’ home maybe one or two years.” Jeffrey, Jr.
has been in the same foster home since August 2009, but due to his need for long-term care,22
the home is not adoptive. However, Jeffery, Jr. would be allowed to stay in his current foster
placement until an adoptive home is selected. Anne has been moved throughout several
foster homes, but a prior foster home has indicated an interest in adopting her, and Anne
desires for such adoption to occur.
Mother has visited with the children regularly, but Father has not. Elizabeth P., who
had lived in the family home, testified that returning the children to Mother and Father would
“[m]ore or less” place them in harm’s way and DCS team leader Veronica Gooch believed
that returning the children would negatively affect their emotional and psychological health.
CASA Elaine Crown stated that adoption was in the children’s best interest, because if the
children returned to Mother and Father, it would only be a short time before they were back
in foster care. The CCP team recommended that “[in the absence of concrete evidence that
[Father] and [Mother] have successfully completed services to ameliorate the numerous
problems that currently render them incapable of appropriately parenting their children,
22
Jeffery, Jr. has been diagnosed with Asperger’s syndrome.
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Anne, Jeffrey, and [Elizabeth P.] should not be returned to the custody of their parents.” The
evidence in this case is both clear and convincing that termination of the parental rights of
Mother and Father is in the children’s best interest.
V. C ONCLUSION
For the aforementioned reasons, we affirm in part and we reverse in part; however,
we affirm the termination of the parental rights of Mother and Father. Costs of this appeal
are taxed equally to Appellants, Jeffery B., Sr. and Clara B., for which execution may issue
if necessary.
ALAN E. HIGHERS, P.J., W.S.
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